RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02886
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Calvary Scout) medically separated “chronic low back pain…no evidence of neurologic abnormality,” rated at 10.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 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:  

IPEB – Dated 20071001	VA* - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Intervertebral Disc Degeneration, Lumbar Spine	5242	0%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20080320 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain.  The service treatment record (STR) supports and supplements the narrative summary (NARSUM) dated 14 September 2007.  The earliest note dated 31 March 2006 indicated the CI stated he jumped off a vehicle while deployed and his back went out, while the NARSUM noted the CI indicated he felt his back explode and he did not feel his legs after he got out of his Humvee after being on patrol for 8 hours in October 2005.  As a result he was placed in quarters with some improvement, but the back pain continued on and off with radiation to the toes when he ran.  His exam was unremarkable and he was treated with meloxicam, a non-steroidal anti-inflammatory drug (NSAID), physical therapy and a profile.  A lumbar spine series in April 2006 was normal.  Cyclobenzaprine, a muscle relaxer, was added in May 2006 for continued back pain.  Physical therapy treatments began in June 2006 and continued through August 2008.  The CI felt his core was stronger, but the pain continued.  Etodolac, an NSAID, and methocarbamol, a muscle relaxer, were added to the medication regiment and the CI was referred to a chiropractor.  In November 2006 physical therapy indicated active flexion of the lumbosacral spine to the mid tibia, while the chiropractor measured 30 degrees of flexion with no radiation into the lower extremities in all planes of motion.  Pain persisted and was aggravated with running, lifting, and jumping and was associated with episodic numbness radiating to the toes during runs, but he denied bowel/bladder dysfunction and had no paresthesias or radiculopathy in January 2007.  On 8 February 2007, the CI was transported to the Emergency Department for low back pain that developed doing combat drills with another Soldier.  Examination noted tenderness at L4-L5, but was otherwise normal.  A lumbar spine series revealed a probable ununited apophysis (an outgrowth of bone) of the L2 spinous process and a fracture was less likely.  Pain continued and prior medication was continued and Percocet EQ (oxycodone, a narcotic and acetaminophen, a pain reliever) was added.  Examination in March 2007 revealed a normal gait with apparent pain and tenderness of the lumbar spinous processes and facets, sacroiliac joint and the right hip area.  An MRI in April 2007 was normal and there was no electrodiagnostic evidence of a lumbar radiculopathy in August 2007.  Pain continued and the Percocet was refilled.  At the NARSUM examination on 14 September 2007 the CI’s range-of-motion (ROM) for flexion was 26 degrees and the combined ROM was 75 degrees.  Additional ROM measurements are in the chart below.  He was tender to palpation from T10 to L5 with SI (sacroiliac) joint pain, right greater than left and severe spasms were present on the right side of his lower back.  His straight leg raise was positive bilaterally at 25 degrees and his gait and walking on toes and heels were normal.

The commander’s statement dated 18 June 2007 indicated the CI was incapable of reasonably performing his duties as a Cavalry Scout due to his back condition.  On the DD Form 2807-1, Report of Medical History, dated 27 June 2007, the CI noted he broke his L2 between the time of initial injury when deployed and February 2007.  He further noted that during combatives his lower back went out and he was sent to the ER where X-rays were taken “and it was found I broke my L2.”  The MEB examiner noted on the 9 July 2007 DD Form 2808, Report of Medical Examination that there was near full ROM with discomfort with forward and lateral ROM.  A permanent L3 profile was issued on 24 September 2007 for chronic low back pain.  

The CI did not show up for the scheduled VA Compensation and Pension (C&P) examination proximate to separation; however, he did attend a remote C&P examination on 6 March 2012, 60 months post-separation that has little to no probative value.  He had no loss of time from work in the preceding year and worked as a dry wall installer and was able to lift 90-95 pounds, had a normal ROM and did not use a back brace.  X-rays of the lumbosacral spine in November 2011 indicated no significant pathology was identified.  However, the CI did note flares of severe back pain with pins and needles of the left leg for a short duration.

The 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 ~3 Mo. Pre-Sep	VA C&P ~No Show	
Flexion (90 Normal)	(25)26	-	
Extension (30)	(10)10	-	
R Lat Flexion (30)	(10)11	-	
L Lat Flexion (30)	(5)4	-	
R Rotation (30)	10	-	
L Rotation (30)	15	-	
Combined (240)	75	-	
Comment	Tender to palpation from T10 to L5 with SI joint pain right greater than left with severe spasms on the right side of the lower back; gait and walking on toes and heels-normal	-	
§4.71a Rating	40%	-	

The Board directed its attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating using code 5237 (lumbosacral strain) for chronic low back pain, while the VA assigned a 0% rating (since the CI did not report for a VA examination) using code 5242 (degenerative arthritis of the spine) for intervertebral disc degeneration, lumbar spine. While the examiner noted on the DD Form 2808 5 months prior to separation “near full ROM,” the Board determined that based on a flexion of 25 degrees 3 months prior to separation, a 40% rating is applicable.  However, the Board also noted there was no VA examination within 12 months with which to compare the ROMs and the remote VA examination 5 years post-separation, although having demonstrated a full ROM, offered little or no probative value.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, the radiculopathy could not be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back pain condition. 

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 reliance AR 635-40 for rating low back pain was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 40%, coded 5237 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Low Back Pain 	5237	40%	
RATING	40%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 201340602, w/atchs
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 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20160005131  (PD201402886)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re­ characterize the individual's separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual's original medical separation for disability with severance pay.

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:

a.	Providing a correction to the individual's separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

b.	Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

c.	Adjusting pay and allowances accordingly.   Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

d.	Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

Enclosure CF:
( ) DoD PDBR
( ) OVA