RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02707
BRANCH OF SERVICE:  Army                                                            SEPARATION DATE:  20070727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Heavy Construction Equipment Operator) medically separated for chronic low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition characterized as “disc herniation at levels L4-L5 and L5-S1 without radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic low back pain as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Please consider all conditions.”  His complete submission is at Exhibit A.

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 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:  

IPEB - Dated 20070411	VA* - (~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease, Thoracolumbar Spine	5242	20%	20070813	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20071010 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) noted the CI had a history of back pain (BP) since November of 2005, first noted while moving furniture.  The CI was deployed and his BP worsened, with reported numbness and tingling down of both posterior thighs.  Thoracic spine (T-spine) X-rays were initially reported as normal, but repeat X-rays and computed tomography scan in December 2006 noted degenerative joint disease (DJD) and disc disease (DDD).  Physical therapy (PT) did not resolve the BP and the CI was sent for additional imaging.  An orthopedic note 3 January 2007 indicated X-rays showed minimal kyphosis and X-rays and magnetic resonance imaging (MRI) showed DJD and DDD as noted before.  The orthopedic exam noted a normal gait and tenderness to palpation (TTP) of the lumbar spine (L-spine), without muscle spasm and normal thoracolumbar (TL) range-of-motion (ROM).  Strength, sensation, and reflexes of the lower extremities (LEs) were normal, with negative straight leg raise (SLR) testing bilaterally.  Additional PT and epidural steroid injections (ESI) were recommended.  An aeromedical evacuation record 27-28 January 2007 noted T-spine DDD with a right T8-9 partial disc herniation and the CI reported “guarding” of his back at all times and frequent muscle spasms helped by muscle relaxant medications.  An examination following the CI’s return to the continental United States on 30 January 2007 noted kyphosis of the T-spine, with no TTP.  There was “decreased” ROM secondary to pain, with minimal TTP and normal LE strength and reflexes. 

At the MEB exam performed on 1 February 2007, 8 months before separation, performed by an orthopedic specialist, the CI reported prior to medical evacuation a MEB was recommended.  He reported constant BP aggravated by activities, including standing straight.  Medications included pain medication, anti-inflammatory medication, and multiple medications for muscle spasm.  The MEB physical exam noted a normal gait.  Back ROM measured with a goniometer was normal.  There was TTP of the L-spine with painful motion, without muscle spasms.  Reverse SLR (indicates nerve root compression at higher lumbar levels) and SLR were both negative.  Strength, sensation, and reflexes of the LEs were normal.  The MEB examiner indicated the presence of some non-organic pain responses during the physical exam.  L-spine MRI 22 January 2007 noted DDD and DJD, with mild spinal canal stenosis, but no spinal nerve encroachment.  

At the VA Compensation and Pension (C&P) Spine exam on 13 August 2007, a month after separation, the CI reported mid and lower BP, with occasional radiation to the LEs and no benefit from prior treatments, including ESI.  He reported constant back pain with daily flare-ups that lasted one to two hours, with some relief from his medications.  The CI did not use a cane or a crutch and reported regular use of narcotic pain and muscle relaxant medications.  The examiner noted that the CI walked without a limp or hesitancy from the waiting room to the exam room, but during the exam grimaced when getting on or off the table or going through ROM.  The exam noted mild thoracic scoliosis, with some TTP of the TL spine and muscles.  Back ROM was flexion 45 degrees (normal 90) and combined ROM of 125 degrees (normal 240).  Painful motion was noted with positive SLR bilaterally.  Three repetitions caused no additional loss of ROM.  Strength, sensation and reflexes of the LEs were normal.

At the VA Compensation and Pension (C&P) Spine exam 28 February 2008, 7 months after separation, the CI reported constant mid and lower back pain, with radiating pain to the backs of both knees.  He reported daily pain, muscle spasms, and decreased motion and six to seven incapacitating episodes in the last 12 months that each lasted for a several hours.  Medications included anti-inflammatory medication, pain medication, and muscle relaxant medication.  The exam noted normal posture and gait and normal LE exam bilaterally.  There was no tenderness, guarding, muscle spasm, or painful motion.  Abnormal spinal curvatures of kyphosis (T-spine) and scoliosis (L-spine) were noted.  Thoracolumbar ROM was flexion 30 degrees with combined ROM of 130 degrees and there was no additional loss of ROM on repetition.  T-spine MRI 31 December 2007 noted normal vertebral bodies with no focal disc protrusion or spinal stenosis and L-spine MRI noted DDD without significant spinal canal stenosis.  The examiner noted electrodiagnostic studies of the LEs January 2008 were normal, without evidence of radiculopathy.  The VA examiner provided the opinion that the CI’s leg pain was less likely than not to be related to his L-spine DDD.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain) for full TL ROM with spinal tenderness.  The VA originally rated the back condition 20%, coded 5242 (degenerative spinal arthritis) and the VARD 21 March 2008 increased the rating to 40%, and both VARDs cited limitation of TL flexion at the respective C&P exams.  The Board noted that the flexion ROM decreased from normal at the MEB exam, to 45 degrees at the C&P exam less than a month after separation, and then to 30 degrees at the C&P exam 7 months after separation.  The VARD 28 March 2008 was based upon VA outpatient treatment records and a C&P exam dated 28 February 2008 and noted that the rating was increased as of December 31, 2007, the date the claim for an increased rating was received and “worsening shown”.  The Board considered that the initial C&P exam was the most proximate exam to the date of separation and agreed that a 20% rating was supported according to the criteria of the VASRD General Rating Formula for the spine based upon TL flexion of 45 degrees.  Members also noted that the notes in the STR indicated frequent muscle spasms, which is also a consideration for the applicability of the 20% rating, and he was taking muscle relaxant medications at the time of the MEB and C&P exams.  The Board next considered if the VA C&P exam 7 months after separation supported a 40% rating at the time of separation.  However, the VA records document that there was post-separation worsening of the TL back condition which is reflected in their own ratings and Member consensus was that the evidence supports that the disability due to the back condition was best approximated by the 20% rating at the time of separation.  The Board reviewed to see if a higher evaluation than 20% was achieved rating based on incapacitating episodes, defined by the VASRD as “bed rest prescribed by a physician and treatment by a physician.”  However, there was no documentation in record of incapacitating episodes as defined of “total duration of at least 4 weeks…during the past 12 months.”  Therefore, the Board determined that at the time of separation the evidence in record supports a 20% rating and no higher, and chose to code as 5243 (intervertebral disc syndrome), which was consistent with the medical evidence in record.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5243.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported intermittent LE pain and N/T, but strength, sensation, and reflexes were normal throughout the record and there was no MRI or EMG/NCV evidence of nerve impingement.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board 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 Low Back Pain Condition	5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXX, AR20160003743 (PD201402707)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA