RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02945
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20031114

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:  The applicant has asked for consideration of all conditions. 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 20030728	VA* - (~1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Paralumbar Muscle Spasm	5237	10%	20031016	
			Spina Bifida 	5299-5239	Deferred	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20040310 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY: 

Chronic Low Back Pain (LBP).  In June 2002, this CI fell and injured his back.  He was treated with medication, physical therapy (PT), and other conservative therapeutic modalities. In November 2002, a computerized tomography (CT) scan was done.  It showed evidence of spondylolysis and spina bifida, as well as other spinal abnormalities.  These CT findings were felt to be congenital birth defects.  In December 2002, he was climbing hills during a military mission, and re-injured his back.  Once again he was treated with medication, and other conservative measures.  In early 2003, due to the chronic, persistent nature of the LBP, an MEB was initiated.

The MEB physical examination (PE) was on 3 March 2003 and on 30 June 2003.  On PE of the back, there was minimal tenderness in the upper lumbar region (L1, L2, L3), but no tenderness over L4, L5, or S1. There was mild paraspinal spasm bilaterally.  The CI could flex his back until fingertips were approximately 6 inches from the ground. He could extend to approximately 30 degrees.  Lateral bending was approx. 30 degrees in each direction, and rotation was approximately 30 degrees in each direction.  He was able to do heel stand and toe walk without difficulty. Strength was normal in all major muscle groups. Sensation was grossly intact, and straight leg raise (SLR) was negative.  The MEB narrative summary (NARSUM) diagnoses were: Chronic low back pain (medically unacceptable), and Congenital spondylolysis at L5-S1 (medically acceptable).

The CI was separated from service in November 2003.  On 16 October 2003, a month before separation, he had a VA Compensation and Pension (C&P) exam.  The CI’s gait and station were normal.  On PE of the lower extremities, there was no evidence of atrophy or anatomic deformity.  Deep tendon reflexes (DTRs) were normal, and SLR was negative.  Back range-of-motion (ROM) was measured, and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Ortho ~ 11 mos. Pre-Sep
(20021217)	VA C&P ~ 1 mo. Pre-Sep
(20031016)	
Flexion (90 Normal)	Fingertips 6” from floor	90	
Extension (30)	approx. 30	15	
R Lat Flexion (30)	approx. 30	25	
L Lat Flexion (30)	approx. 30	25	
R Rotation (30)	approx. 30	(not measured)	
L Rotation (30)	approx. 30	(not measured)	
Combined (240)	(unable to calculate)	155-215	
Comment	Since forward flexion was not measured in degrees, we are unable to calculate the “Combined ROM.”	Even though rotation was not measured, we know that “Combined ROM” must be greater than 120 degrees, but not greater than 235 degrees.	
§4.71a Rating		10%	

The Board directed attention to its rating recommendation based on the evidence.  At the October 2003 C&P exam that exam, thoracolumbar forward flexion was 90 degrees and extension was 15 degrees.  Lateral bending (right and left) was 25 degrees each direction.  Rotation (right and left) was not measured.  However, the Board determined that the thoracolumbar combined ROM was greater than 120 degrees, but not greater than 235 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted when thoracolumbar combined ROM is greater than 120 degrees, but not greater than 235 degrees.  

Therefore, the Board determined that a 10% rating was appropriate in this case.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other diagnostic codes which could be applied to the CI’s condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.    

The Board also considered the matter of radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends no change to the disability rating for the chronic low back pain condition.  The Army PEB used VASRD diagnostic code (DC) 5299-5295.  This DC was obsolete at the time of the CI’s separation (November 2003).  Therefore, the Board recommends a change in the VASRD code.  The Board recommends DC 5299-5242 (analogous to degenerative arthritis of the spine).

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 LBP condition, the Board unanimously recommends a change of diagnostic code to 5299-5242, IAW the VASRD §4.71a which was in effect at the time of the CI’s separation.  There were no other conditions within the Board’s scope of review for consideration.    

The Board, therefore, 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, after soldier fell and landed on his back	5299-5242	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005457, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability, I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure