RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02878
BRANCH OF SERVICE:  Army	SEPARATION DATE: 20050321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Armored Vehicle Crewman, medically separated for low back pain; with a disability rating of 20%.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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:  

SERVICE PEB - 20050202	VARD - 20050610	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Low Back Pain	5237	20%	Chronic Lumbar Strain	5237	20%	20050422	

ANALYSIS SUMMARY:   

Lumbar Condition.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of low back pain in January 2004 after a fall from atop a military vehicle while deployed to Iraq.  The pain persisted throughout the remainder of the deployment and after re-deployment.  There was STR documentation of bilateral leg radiation, but subjective weakness or sensory symptoms were denied.  All neurological examinations in the STR were normal and magnetic resonance imaging was normal.  The CI was not a surgical candidate and conservative treatment was not successful at restoring full MOS and general soldiering functionality.  There were STR observations of normal gait and grossly normal or modestly limited range of motion (ROM), with no evidence to the contrary; and, there was no documentation of incapacitating episodes.
An orthopedic addendum to the NARSUM was conducted 7 December 2004 (4 months pre-separation) and documented back pain with bilateral leg pain (no sensory or motor symptoms) rated 7/10 and interfering with heavy lifting, running, and physical fitness testing.  The examiner recorded a normal gait and normal neurologic findings (sensory, reflexes, and 5/5 strength).  Flexion was estimated at 60 degrees (normal 90).  The NARSUM was conducted 18 January 2005 (2 months pre-separation) and documented “constant low back pain aggravated by any physical activity, bending, lifting, impact activities, standing or walking more than 30 minutes, or sitting more than 1 hour” without mention of radicular pain or symptoms.  The NARSUM physical examination recorded tenderness without spasm; and, provided ROM measurements of flexion to 50 degrees with combined ROM of 150 degrees (normal 240).

A VA Compensation and Pension (C&P) examination was conducted 22 April 2005 (1 month post-separation) and documented daily pain rated 4-5/10, specifically denying radiation or neurological symptoms, and interfering with lifting and prolonged sitting or standing.  The VA physical examination recorded a normal gait and spinal contour, tenderness without spasm, and normal neurologic findings (sensory, reflexes, and 5/5 strength).  The VA measured ROM was flexion to 90 degrees (recording onset of pain at 40 degrees) and was likewise normal for all planes (combined 240).  The examiner noted increased pain, but no ROM decrement, with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under code 5237 (lumbar strain) was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA’s 20% rating under the same code was justified by the rater as “functional” flexion to 40 degrees, relying on the examiner’s reported pain threshold.  The Board noted that, especially considering the absence of DeLuca ROM degradation, the rater’s rationale was questionable; and, the C&P evidence is more consistent with a §4.71a rating of 10% for painful motion.  The evidence does not support any §4.71a criteria for a rating higher than 20% or the presence of incapacitating episodes that would achieve a higher rating under that formula.  The Board considered whether additional Service rating could be recommended under a peripheral nerve code for the reported radicular symptoms; but, members agreed that neither the functional link to fitness requisite for rating, nor the presence of a VASRD ratable deficit, were supported by the evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar condition.

BOARD FINDINGS:  In the matter of the lumbar 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.  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 20140612, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20160007944  (PD201402878)

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