RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02887
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-6 (Microwave Systems Operator Maintainer) 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 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:  

FPEB - Dated 20070302	VA* - (~9 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5243	10%	Multilevel Degenerative Disc Disease, Lumbar Spine	5242	10%	20080108	
Other MEB/PEB Conditions x 1 (Not in Scope)	Other x 31 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080125 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  Among the early notes in the service treatment record (STR) was an MRI report dated 6 July 2004 that indicated the CI had low back pain that was not responsive to conservative therapy.  The MRI demonstrated degenerative disc changes most notably at L3-L4 and there were disc protrusions at L3-L4 and L4-L5.  X-rays of the lumbar spine were within normal limits in May 2005.  A physical therapy note in June 2005 indicated the CI had low back pain for 4 months after performing sit-ups on a physical fitness test and had a long history of lower back pain, which had been treated with manipulation, exercises and steroid injections.  Range-of-motion (ROM) measurements were normal and physical therapy was instituted.  An MRI in November 2005 noted the degenerative disc protrusions at L3-L4, L4-L5, and L5-S1, which produced an effect on the exiting nerve root on the left.  In September 2006 she had a normal gait with somewhat limited flexion, some muscle tightness with extension, and negative straight leg raising tests (to determine nerve root irritation).  In the absence of any nerve root compression, a neurologist found it difficult to explain the numbness in the CI’s lower extremities and did not see anything specifically surgically to do at that time.  Feldene (piroxicam, a nonsteroidal anti-inflammatory drug (NSAID)), Flexeril (cyclobenzaprine, a muscle relaxer), and Lortabs (hydrocodone, a narcotic and acetaminophen, a pain reliever) were prescribed in November 2006.  The CI fell in January 2006 and X-rays of the sacrum and coccyx were normal.  Examination of the back in January 2007 revealed tenderness on palpation of the lower back and right and left paraspinal regions as well as muscle spasm of the left paraspinal region.  The ROM of the lumbosacral spine was full with pain with motion.

The commander’s statement dated 14 December 2006 noted the CI was observed that if she had to do much physical activity her condition was aggravated and increased her pain level.  Therefore, she was not capable of conducting the duties of a utilities equipment repairer, which could be physically demanding in the field.  At the MEB examination, the CI reported on DD Form 2807-1 dated 8 January 2007 that she had lower back pain in the sacral area in 1991 and in 2001-2006 off and on after injuries in 2001, 2004, and 2005. She also had pain when doing sit-ups and bearing the weight of her gear.  Running, climbing stairs, sitting and standing also caused pain. Additionally, she had an increase in numbness in the extremities around 2005. The MEB physical examiner noted on DD Form 2808 dated 9 January 2007 decreased and fine touch sensation to both lower extremities, but checked off normal for the spine and recorded degenerative disc disease with low back and SI (sacroiliac) joint pain and sensory diminution to lower extremities in the summary of defects and diagnoses section.  

The MEB narrative summary (NARSUM) dated 9 January 2007 noted activities that worsened her pain included prolonged standing, especially when done on hard surfaces, prolonged sitting, cold weather, and any type of weight bearing activities.  Pain was lessened by the application of heat as well as changing positions or taking her prescribed medications.  On examination she had a good ROM with minimal pain on flexion and extension along with some palpable paraspinous muscle spasms to her lower left paraspinal muscle region.  Palpation also did elicit some tenderness bilaterally to her lumbar paraspinal regions and she had some sensory diminution to fine touch and vibratory sense of both lower extremities with normal reflexes.  A permanent L3 profile was issued for lumbago on 17 January 2007 and approved one day later with limitations of all physical fitness training, all “high impact” physical activities, and all military functional activities except wearing a protective mask and all chemical defense equipment.  

At the VA Compensation and Pension (C&P) examination dated 8 January 2008, performed 9 months after separation, the CI reported an injury while assigned active duty in February 2002 when she slipped on the ice with a rucksack on her back.  In February 2003 she again “tweaked” her back.  Since then she had recurrent low back pain with a severity of 5/10 (10 being the worst pain) with 7-8/10 at its worst and rare instances of 10/10 pain.  She took the Lortabs three to four times a month and Motrin (ibuprofen, an NSAID) for the pain.  On examination there was no palpable spasm or tenderness of the lumbar spine.  The ROMs of the thoracolumbar spine were all full with mild pain at the end of the movement on forward flexion and backward extension.  There was no limitation of movement on repetition, but there was mild tenderness on palpation of the right lumbar muscles.  .

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
	PT ~3 Mo. Pre-Sep
	VA C&P ~9 Mo. Post-Sep
	
Flexion (90 Normal)	Good ROM	(90)119,120,122	Full	
Extension (30)		(25)24,25,25		
R Lat Flexion (30)		(25)25,25,25		
L Lat Flexion (30)		(30)36,37,36		
R Rotation (30)		(30)64,65,65		
L Rotation (30)		(30)52,52,54		
Combined (240)	-	230	-	
Comment	Minimal pain on flexion and extension, palpable spasms of the lower left paraspinal region, tenderness to palpation in the bilateral paraspinal lumbar regions  	Pain at end range of flexion, right lateral flexion, and left lateral flexion	No spasm; pain at the end of movement of flexion and extension; mild tenderness on palpation of the right lumbar muscles	
§4.71a Rating	-	PEB 10%	0% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5299-5243 (Intervertebral disc syndrome) for chronic low back pain secondary to multilevel degenerative disc disease.  The VA assigned a 10% rating using code 5242 (Degenerative arthritis of the spine).  The Board sought a route to a higher rating, but in the absence of ankylosis, further diminished ROMs or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, a higher rating could not be attained.  The Board then considered whether an additional Service 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, a 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

Contended PEB Condition-Irritable Bowel Syndrome.  The Board’s main charge is to assess the fairness of the PEB’s determination that the irritable bowel syndrome (IBS) 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 IBS condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  A note dated 5 December 2003 indicated the CI had IBS since Desert Storm.  While back on active duty and eating on base, symptoms of constipation and diarrhea occurred.  Treatment consisted of fiber in the diet along with Bentyl (dicyclomine, a bowel muscle relaxer).  By the end of the month the condition improved and the Bentyl was discontinued due to side effects.  The NARSUM indicated the CI had the diagnosis of irritable bowel syndrome, which she treated with medication and avoidance of certain foods including fatty types.  A note dated 18 January 2007 indicated she tolerated the problem well, which was controlled by diet; and, she had very little ongoing difficulties.  At the VA C&P examination the CI indicated she took Bentyl three to four times a week without side effects.  The impact of the IBS was social in that she avoided a teaching career.  The aforementioned was reviewed and considered by the Board.  There was no performance based evidence from the record that the IBS 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 irritable bowel syndrome condition and so no additional disability ratings are 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 chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended irritable bowel syndrome (IBS) 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, 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 20140515, 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

JUL 1 4 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160005132 (PD201402887)

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
( ) OVA