RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02929
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20031120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (11B10, Infantryman) medically separated for “chronic Low back pain (LBP) due to DDD,” rated 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 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 20030918	VA* - (At-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back…	5299-5295	10%	Degenerative Disc Disease	5242-5237	10%	20031108	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20040302 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic LBP Condition.  The CI first reported LBP associated with paresthesia into both legs in 2001 after lifting a fellow solider during physical training.  Early service treatment records (STR) indicated radiologic evidence of lumbosacral DDD and a magnetic resonance resonance (MRI) in February 2003 also revealed herniated discs with apparent nerve root compression at the L4-L5 and L5-S1 spinal levels.  Non-surgical treatment modalities were pursued, and the first temporary profile was issued in February 2002.  Due to persistent back and leg symptoms, the CI was permanently profiled in May 2003 with a listed diagnosis of Lumbar DDD.  The narrative summary (NARSUM) (06 August 2003; 4 months pre-separation) noted the CI’s current symptoms as unchanged from his original back and leg complaints.  His physical examination (PE) was brief and revealed a normal gait.  His range of motion (ROM) was not described as a ‘measured range,’ but rather at a specific point where pain begins to be manifested.  Specially stated, “He has 20 degrees of flexion of his lumbar spine before he starts to have pain.  He has 10 degrees of extension bending left and right before he has pain.”  The examiner rated the CI’s pain as constant and slight to moderate.  At the VA Compensation and Pension (C&P) examination (08 November 2003; 2 weeks pre-separation), the CI reported constant LBP, aggravated by bending and cold weather.  He endorsed the inability to walk greater than a mile or lift heavy weight.  His PE revealed a normal gait.  There was tenderness and decreased thoracolumbar ROM.  There was no comment with regards to painful motion.  The VA diagnosis remained DDD of L4-S1.  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)	MEB ~4 Mo. Pre-Sep
(20030530) 	VA C&P ~ 2 weeks Pre-Sep
(20031108) 	
Flexion (90 Normal)	20 (pain begins)	70	
Extension (30)	10 (pain begins)	20	
R Lat Flexion (30)	10 (pain begins)	30	
L Lat Flexion (30)	10 (pain begins)	20	
R Rotation (30)	-	30	
L Rotation (30)	-	30	
Combined (240)	-	200	
Comment	painful motion	tenderness;  	
§4.71a Rating	n/a	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the back condition at 10%.  The PEB utilized a code under the old spinal rules whereas the VA dual coded the condition under the new spinal rules which were appropriate for this specific case.  The VA’s dual code was 5242-5237 (degenerative spinal arthritis – lumbosacral strain).  Board members first acknowledged that the ROM documented at the MEB examination were not necessarily an indication of a ‘range,’ but rather a specific point where pain began and therefore, not adequate criteria for a proper rating.  Members deliberated and agreed that this unconventional style of documentation coupled with the closeness of the C&P evaluation to separation supported the conclusion that exclusive exam probative value be assigned to the VA examination.  The Board agreed that sufficient evidence of tenderness as well as individual and combined ROM measurements were present to justify the PEB’s rating of 10% IAW VASRD §4.71a.  Additionally, all members agreed that despite subjective radicular symptoms, the absence of objective evidence of the same would not support a separate ratable neuropathy for disability, since no functional impairment linked to fitness was in 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 low back 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 on the USAPDA pain policy AR 635-40 DoDI 1332.39 for rating the back was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the low back 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 following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140602 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 XXXXXXXXXXXXXXXXXXXXX AR20160005449 (PD201402929)

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