RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02811
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070821

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for chronic low back pain, rated at 10%.  

CI CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 condition 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 20070717	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Thoracolumbar Spine Scoliosis	5299-5242	20%	20071220	
			Bilateral Leg Numbness	8620	NSC	20071220	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20080319 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Condition.  The service treatment record (STR) indicated multiple traumatic injuries to his spine from 2004 through 2006.  These include a fall during a ruck march, a motor vehicle accident, and being tossed about in a Humvee that was near an IED blast.  His physical complaints consisted of upper back (between shoulder blades) pain and LBP with ‘few incidences of numbness in left leg.”  Initial x-rays were normal with incidental findings of mild scoliosis of the thoracic spine and very mild scoliosis of the lumbar spine.  Repeat X-rays performed 10 weeks prior to separation revealed minimal degenerative changes.  Electro-diagnostic (Edx) studies performed on 19 February 2007 revealed a left-sided neuropathy corresponding to the saphenous nerve.  Despite physical therapy (PT), manipulations, medications, and local injections, his low back symptoms persisted.  He was permanently profiled in March 2007 with a diagnosis of ‘low back degenerative discs’ and referred to an MEB.  At the MEB narrative summary (NARSUM) examination (22 May 2007; 3 months pre-separation), the CI reported continued ‘pain radiating into his left leg intermittently and some left sided numbness which does not pass the knee’.  ‘He denies any type of bowel or bladder symptoms.’  His physical examination (PE) noted thoracolumbar tenderness as well as decreased range-of-motion (ROM) as measured by PT on 29 March 2007 (5 months pre-separation).  Neurosensory and strength testing of the lower extremities were normal.  His diagnosis was LBP with intermittent radiculopathy.

At the VA Compensation and Pension (C&P) examination (20 December 2007; 4 months post-separation), the CI reported an aching, sharp, burning, 9/10 constant LBP which was aggravated by physical activity and relieved with Excedrin and rest.  He additionally stated, “There is tingling and numbness and pain in both legs.”  The VA PE revealed spinal muscle spasms and tenderness of the lower thoracic vertebra.  Thoracolumbar ROM was limited and painful with positive Deluca criteria of five degrees additional limitation due to pain, fatigue, weakness, lack of endurance, and incoordination.  Neurosensory and motor examination of both lower extremities was intact and normal.  The diagnosis was scoliosis of upper thoracic and 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)	PT ~5 Mo. Pre-Sep
(20070329) 	VA C&P ~4 Mo. Post-Sep
(20071220) 	
Flexion (90 Normal)	(55) 60/55/55	70	
Extension (30)	(25) 25/25/25	10	
R Lat Flexion (30)	(30) 30/30/30	15	
L Lat Flexion (30)	(30) 25/30/30	20	
R Rotation (30)	(30) 35/35/35	10	
L Rotation (30)	(30) 35/35/30	10	
Combined (240)	200	135	
Comment	Painful motion; spasm, guarding, tenderness; 
Gait is normal	(+) Deluca at 5 degree loss; spasm; tenderness; 
Gait is normal	
§4.71a Rating	20%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5243 (Intervertebral disc syndrome) whereas the VA analogously coded under 5242 (Degenerative arthritis of the spine) at 20%, with the PEB citing painful motion and the VA citing 10% for ROM limitation and an additional 10% for past extensive treatments.  Board members first agreed that the PEB’s 10% rating was supported by either painful motion IAW VASRD §4.59 or the combined ROM IAW §4.71a.  In addition, PT measured 55 degrees of thoracolumbar flexion and thus supported a higher rating of 20%.  There were no available alternative or analogous coding options which were applicable and or further advantageous to the CI.  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 LBP condition.  The Board additionally considered if the symptomatic lower extremity radiculopathy warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  Any pain component of the 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.  As discussed above, PEB’s likely reliance on AR 635-40 for rating the LBP was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the LBP 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.

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	5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140611, 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,AR20160004024 (PD201402811)

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