RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  pd-2014-02692
BRANCH OF SERVICE:  Army	BOARD DATE:  20150325
SEPARATION DATE:  20041117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Indirect Fire Infantryman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “moderate, constant, chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 10%, with likely application of AR 635-40.  The CI made no appeals and was medically separated.

CI’s CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the 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/Naval 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 confined to 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:

Army IPEB – Dated 20041018	VA* – Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Disc Disease, Lumbar Spine	5299-5242	20%	STR	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20041214 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Pain.  In April 2004, this CI had onset of low back pain (LBP).  Magnetic resonance imaging showed degenerative disc disease (DDD), with mild posterior protrusion at L4-L5.  He was treated with physical therapy and pain medication.  In spite of all treatment efforts, his LBP persisted and a MEB was initiated.  The MEB physical examination (PE) was on 30 August 2004.  The CI reported that his pain was constant, and it interfered with sleep.  The pain was worse with walking, and he was unable to do any running.  While sitting in the examination room, he was in obvious pain.  On PE of the back there was tenderness to palpation over the lower half of the lumbar spine.  Muscle spasm was present, and there was loss of lumbar lordosis.  Straight leg raise was positive bilaterally.  Neurological exam showed normal skin sensation, and normal deep tendon reflexes.  Range-of-motion (ROM) was measured and is summarized in the chart below.  The diagnosis in the MEB narrative summary was: “Moderate, constant, chronic LBP with right lower extremity radiculopathy due to degenerative disc disease of the lumbar spine.”

As noted above, the CI was medically separated from service on 17 November 2004.  Two weeks after separation, he was scheduled for a VA Compensation and Pension exam, but he failed to appear for that evaluation.  The goniometric ROM evaluation which the Board weighed in arriving at its rating recommendation is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 2½ mos. Pre-Sep
(20040830)	
Flexion (90 Normal)	40	
Extension (30)	5	
R Lat Flexion (30)	10	
L Lat Flexion (30)	10	
R Rotation (30)	30	
L Rotation (30)	30	
Combined (240)	125	
Comment	Painful motion, and loss of lordotic curve	
§4.71a Rating	20%	

The Board directed attention to its rating recommendation based on the above evidence.  At the August 2004 MEB examination, 11 weeks prior to separation, thoracolumbar forward flexion was 40 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees.  A rating of 20% is also warranted when muscle spasm is severe enough to result in abnormal spinal contour.

Therefore, based on a thorough review of the evidence in the treatment record, the Board determined that, at the time of separation, a 20% disability rating was appropriate for the CI’s chronic back condition.  The Board tried to find a path to a higher rating, using other codes which could be applied to the back pain condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a spine abnormality which would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties to the degree this condition could have been considered separately unfit.  His pain (pain in the back, with radiation to the right leg) was worse with walking, and he was unable to do any running.  The Board also noted that the CI had neurological symptoms.  However, there was no performance-based evidence that it was the neurological condition which impacted his military duties.  Therefore, by preponderance of evidence, the Board concluded that there was no separately unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a separation disability rating of 20% for the chronic, unfitting LBP due to lumbar DDD.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic back pain, due to lumbar DDD 	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXX, AR20150014908 (PD201402692)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA