RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02545
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Military Police, medically separated for “chronic back pain, due to degenerative disc disease (DDD), without neurologic abnormality,” with a disability rating of 20%.  

CI CONTENTION:  The CI received a higher percentage for his back condition by the VA.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based upon a review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.   

RATING COMPARISON:  

SERVICE PEB - 20040114	VARD - 20040913	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, due to DDD	5299-5237	20%	Lumbar DDD	5003	10%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Back Pain, due to DDD.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in April 2003 after heavy lifting.  An orthopedic note dated, 25 July 2003, recorded multi-level DDD present on an MRI and recommended a trial of epidural steroid injections.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “multilevel lumbar DDD” for PEB adjudication.  The MEB NARSUM examination was dated 4 September 2003, approximately 6 months prior to separation, and accomplished by the treating spine surgeon.  The CI reported he had a several year history of low back pain which was aggravated by lifting in April 2003.  His pain persisted despite duty limitations and medications.  He was unable to wear a rucksack, body armour and LBE and could not run or march.  On examination, the lumbar spine showed range of motion (ROM) flexion of 20 degrees as measured by a goniometer.  The Board observed that the VASRD uses the thoracolumbar spine for rating, reducing the probative value of these measurements.  The neurological examination was normal and provocative testing for nerve root irritation absent.  No comment was made on gait, tenderness, guarding, or spasm.  The surgeon did not think that his multi-level DDD was amendable to surgical intervention.  At the MEB examination recorded on DD Form 2808, dated November 2003, approximately 4 months prior to separation, the examiner noted that bilateral straight leg raising, a provocative test for nerve root irritation, was positive.  An addendum by the chief of orthopedics, dated 22 December 2003, approximately 3 months prior to separation, noted that the ROM values in the NARSUM were accomplished as was typical for a spine surgeon, but that the following values were provided for the PEB (implied that these were for rating purposes).  Flexion was 55 degrees (normal 90 degrees), extension 25 degrees, and left and right rotation 12 and 15 degrees, respectively, (normal 30).  There was no VA Compensation and Pension (C&P) examination performed until 9 April 2005, 13 months after separation and outside the 12 month window assigned for consideration for probative value of impairment at the time of separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5237 code (Lumbosacral strain) citing forward flexion of 55 degrees.  The VA assigned a 10% rating using the 5003 code (Arthritis, degenerative) based on the STR citing painful motion of a major joint.  The VA later increased the rating to 40%, but based this on the 9 April 2005 VA C&P examination which, as noted, is not probative for disability at separation as it is remote from separation.  The limitation in motion, on the single (incomplete) set of values which are probative for rating at separation, supports a 20% rating.  No criteria for a higher rating were in evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the chronic back pain, due to DDD condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140531, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

'JUL 2 8 2016

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160011119 (PD201402545)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (DoD PDBR) recommendation and record of proceedings pertaining to the
subject individual. Under the authority of Title 10, United States Code, section 1554a,
I accept the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:
Enclosure
CF:
( ) DoD PDBR
() DVA