RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02761
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150424
SEPARATION DATE:  20040804

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Guard E-4 (Military Police) medically separated for a chronic low back condition.  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 MEB forwarded “chronic low back pain (LBP) secondary to multilevel degenerative disk disease (DDD) at L4-5 and L5-S1, with asymmetric bulging to the left” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic LBP, long standing, permanently service aggravated” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI initially submitted an appeal to the Formal PEB but withdrew his request.  After separation he appealed to the Army Board of Military Corrections (ABCMR) but his appeal was denied.   He was separated on 4 August 2004.

CI CONTENTION:  The CI requested that the Board review all of his 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 20031125	VA* - (~6 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease, Lumbar Spine	5242	40%	20040223	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20040420 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY: 

Chronic Low Back Pain.  The service treatment record (STR) reflected that the CI experienced injuries to his low back in 1994, 1999, and 2003 none of which required surgical intervention.  A commissioning physical examination (PE) signed on 18 January 2003 noted all prior back symptoms have resolved without sequelae.  On 26 January 2003, he hurt his back while lifting heavy equipment.  His acute care discharge diagnosis was mechanical LBP and treatment consisted of medication and restrictions.  A magnetic resonance image obtained in February 2003 revealed DDD of the lumbosacral spine as well as a central disc bulge at the same level without definite nerve compromise.  He continued conservative treatment to include epidural steroid injections.  All treatment modalities failed to provide him long-term pain relief.  He was permanently profiled in November 2003 with the diagnosis of LBP; DDD of the lumbosacral spine.  There were no periods of VASRD defined incapacitation. The commander’s letter provided a great summary of the CI’s timeline of injury, but did not make any determination of the CI’s present limitations due to being deployed and separated from the CI.  At the MEB narrative summary (NARSUM) examination performed on 8 September 2003,  11 months prior to separation, the CI endorsed severe LBP, with occasional bilateral radicular numbness and tingling, all aggravated by prolonged standing, sitting, walking, lifting and bending.  His PE revealed low back tenderness with decreased and painful spinal motion.  The examiner assessed the CI’s condition as stable and chronic with a “fair” prognosis.  

The VA Orthopedic Compensation and Pension (C&P) examination (23 February 2004; 6 months after separation), was not in evidence in the case file, but the associated VARD transcribed the CI’s subjective complaints and physical findings of the missing examination.  The CI endorsed low back symptoms in association with activities involving repeated bending, heavy lifting, and twisting motions.  The PE findings included significantly decreased and painful thoracolumbar ROM.  Distal neuro-muscular activity was normal and there was no evidence of tenderness, swelling, or deformity of the lumbar spine.  Additionally, the examiner did not make comment in regards to a radiculopathy nor did the physical findings indicate its presence.  The diagnosis remained DDD of the lumbar spine.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB/PT ~11 Mo. Pre-Sep
(20030915)	VA C&P ~4 Mo. Pre-Sep
(20040420) 	
Flexion (90 Normal)	75	30	
Extension (30)	25	20	
R Lat Flexion (30)	30	20	
L Lat Flexion (30)	30	20	
R Rotation (30)	-	-	
L Rotation (30)	-	-	
Combined (240)	-	-	
Comment	painful motion	painful motion	
§4.71a Rating	10%	40%	

The Board directed its attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5237 (lumbosacral strain) and 5242 (degenerative arthritis) respectively; both citing limited motion.  Board members first agreed that sufficient evidence of limited ROM and or painful motion was present to justify the PEB rating of 10% according to VASRD §4.71a and §4.59.  All members further agreed that both the MEB and VA exams were incomplete in reporting ROM parameters and thus unable to compile a combined ROM value.  The few ROM values that were reported by the VA were significantly less than those reported by the MEB/PT examiners 7 months prior.  Within the case file, there was no record of recurrent injury or other pathologic development in explanation of the declining values.  Board members extensively discussed the abrupt ROM impairment between the two exams and agreed that the MEB/PT evaluation 11 months prior to separation, remained more consistent with the objective findings in the few STRs since the 2003 injury; and therefore, placed a higher degree of probative value on that exam.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP condition was appropriately recommended in this case.  The Board additionally considered if the lower extremity radiculopathy symptoms warranted an additional Service disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  

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 low back 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.

RECOMMENDATION:  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 20140524, 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 XXXXXXXXXXXXXXXXXX, AR20150018755 (PD201402761)

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