RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03088
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080125	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, M1 Armor Crewman, medically separated for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention in their application.  The CI’s 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 - 20071030	VARD – 20080827 by Service Treatment Record (STR) review	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Central Disc Protrusion, L4-S1 with Degenerative Changes	5243	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to STRs and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in November 2006 after falling and twisting his back during a fitness run.  The CI reported low back pain (LBP) and right lower extremity (LE) pain, without paresthesias (abnormal sensations, often numbness and tingling), or bowel or bladder problems.  Magnetic resonance imaging (MRI) in February 2007, 11 months prior to separation, showed a mild central disc protrusion at L5-S1 with degenerative changes.  At an orthopedic evaluation on 26 March 2007 the exam showed tenderness to palpation of the lumbar region with normal sensation and reflexes and negative straight leg raise testing (SLR) for radiculopathy.  Epidural steroid injections were recommended for diagnostic and therapeutic purposes.  Electrodiagnostic studies performed 24 April 2007 were negative for radiculopathy.  Evaluation by neurosurgery in August 2007 recommended non-surgical treatment.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  At the MEB NARSUM examination in October 2007, 3 months prior to separation, the CI reported LBP worsened by prolonged standing, running, jumping, and bending.  Physical exam showed 5/5 muscle strength, negative straight leg raise testing (SLR- maneuver to elicit nerve tension signs), and positive tenderness to palpation (TTP) of the paraspinal muscles.  Back range of motion (ROM) was limited by pain and showed flexion to 45 degrees (90 normal), with a combined ROM of 140 degrees (240 normal).  

The CI failed to report for his VA Compensation and Pension (C&P) examination in April 2008, 3 months after separation. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5237 (lumbosacral strain), citing TTP of the paraspinal muscles.  The VA also assigned a 10% rating using code 5243 (intervertebral disc syndrome) based on service medical records for muscle spasms and localized tenderness not resulting in abnormal gait.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the NARSUM examination.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported LBP and right LE pain, however exams noted normal strength, sensation and reflexes and electodiagnostic studies showed no evidence of radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Radiating pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there is no evidence in this case of functional impairment due to motor or sensory deficits that could be described as separately unfitting.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5237. 

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, 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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140626, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160007959, 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,