RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02789
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20060304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Policeman) medically separated for “mild degenerative disk disease” rated at 0%.  

CI CONTENTION:  The applicant has asked for consideration of all conditions in her application.  Her 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 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 20051227	VA* - (~5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	0%	Degenerative Disc Disease, Lumbar Spine	5243	10%	20051005	
Migraines	Not Unfitting	Migraines	8100	0%	20051005	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060307 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The narrative summary (NARSUM) noted the CI had a history of chronic low back pain (LBP) since jumping off a large military vehicle while deployed.  She was treated by a chiropractor, physical therapy, pain clinic and was evaluated by orthopedics.  Notes in the service treatment record (STR) indicated the CI initially reported LBP and right lower extremity (RLE) numbness, tingling, and weakness.  The RLE symptoms resolved within a couple months, but the LBP persisted.  Lumbar magnetic resonance imaging performed 26 April 2005 showed degenerative disc disease, without disc herniation, spinal canal stenosis, or spinal nerve encroachment.  The CI had facet joint injections with some benefit, but the pain specialist did not recommend additional procedures because the pain was thought related to degenerative disc disease (DDD).  A chiropractic consultation on 9 August 2005 noted full, painful range-of-motion (ROM) of the lumbar spine, with normal strength, sensation, and reflexes of the bilateral LEs.  There was tenderness to palpation (TTP) of the lower lumbar spine and sacroiliac (SI) joints.  Three visits to the emergency room for acute back pain are documented in the STR in the 12 months before separation in June, September, and October 2005.  Chiropractic follow-up visits in September and October 2005 noted full, painful back ROM.  At a PT evaluation on 30 September 2005, 5 months before separation, the CI reported LBP with no LE pain.  The exam noted a normal gait.  Back ROM was 45 degrees (normal 90), with combined ROM of 165 degrees (normal 240).  There was TTP of the left SI joint and negative SLR bilaterally.  

At the MEB exam, the CI reported LBP with pain that radiates to the back of both of her knees.  She reported pain graded 3/10 with flare-ups of 10/10.  The MEB physical exam and the DD Form 2808, Report of Medical Examination, both cited the VA exam reviewed below.   

The VA Compensation and Pension (C&P) exam on 5 October 2005, 5 months before separation, indicated the exam was also for the Medical Evaluation Board.  At the exam the CI reported LBP radiating to the back of both knees, with monthly flare-ups in the pain lasting 6 hours.  The exam noted a normal posture and gait.  The lumbar spine was normal in appearance, without TTP.  Back ROM was 90 degrees flexion, with combined ROM of 230 degrees.  Strength, sensation, and reflexes of the bilateral LEs were normal with negative SLR.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5299-5242 (analogous to degenerative spinal arthritis and the VA rated it 10%, coded 5243 (intervertebral disc syndrome).  The Board noted that the evidence in record supports the CI had painful, but full back ROM the majority of the time, with occasional flare-ups (three episodes documented in the 12 months before separation).  The VA pre-separation exam, also cited by the MEB exam, noted full ROM without muscle spasm.  The Board agreed that the evidence supports a 10% rating according to the VASRD General Rating Formula for the spine in effect on the date of separation and reviewed to see if the next higher rating of 20% was supported.  After deliberations, Member consensus was that although the CI experienced decreased ROM with occasional flare-ups, her ROM was not permanently or frequently limited to “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees” or “combined ROM…not greater than 120 degrees”, or associated with “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour” as specified by the 20% rating.  There also was no documentation of “incapacitating episodes having a total duration of at least two weeks” due to the back condition as defined by the VASRD (symptoms of intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician) for a higher rating based on the Formula for Rating Intervertebral Disc Syndrome on incapacitating episodes.  Therefore, the Board determined that the evidence supports a 10% rating for the low back condition and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the low back condition as separately unfitting and eligible for additional disability rating.  Proximate to separation the CI had reported LBP that radiated at times to the backs of the knees, but strength, sensation, and reflexes were normal throughout the record.  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.  
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

The NARSUM noted a diagnosis of migraines headaches (HA) and medications for treatment of acute migraine HA (Imitrex) as needed.  The NARSUM indicated the migraine condition was medically acceptable.  There are two treatment visits in record for the migraine condition in June 2003 and January 2004.  Both visits indicated migraine headaches that the CI usually treated with Imitrex, but was out of medication.  At the January 2004 visit the CI was placed on 24 hours quarters.  At the VA C&P exam 5 October 2005, cited by the MEB exam, the CI reported migraine headaches 4 times per year of 2 hours duration, relieved by Imitrex.

The migraine condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the migraine condition and so no additional disability rating is recommended.

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, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended migraine condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.   

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

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5243	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140529, 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 AR20160004015 (PD201402789)

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 10% 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