RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03206
BRANCH OF SERVICE:  Army	BOARD DATE:  20150610
SEPARATION DATE:  20040825

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-6 (Combat Engineer) medically separated for a low back disability.  The CI’s condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic subjective back pain…without neurologic abnormality” as unfitting, rated 10% with likely application of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  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/Naval 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 20040624	VA* - (~3 and 5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain …without Neurologic Abnormality	5299-5242	10%	DDD L4 Through S1	5243	20%	2004111620050127	
Other x 0 (Not In Scope)	Other x 9	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20050208 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Subjective Back Pain.  The first record in evidence for the low back pain (LBP) condition was a civilian emergency room note dated 15 October 2003 in which LBP was one of several complaints for which the CI was evaluated.  However, the Board observed that the CI had been on a profile for LBP since the previous April.  He was again seen in December and periodically thereafter.  An X-ray on 17 February 2004 showed an unremarkable (normal) lumbar spine.  A physical therapy note that same day documented that the CI had aggravated his back pain on 17 October 2003 while doing physical training.  A primary care note dated 2 March 2004 documented that he was undergoing a MEB and that he had sprained his right ankle when he tripped on some steps.  No comment was made of the back and no head injury was documented.  A magnetic resonance imaging on 1 April 2004 showed congenital narrowing of the spinal canal with mild, multi-level degenerative disc disease and degenerative joint disease.  The narrative summary was dated 29 April 2004 and documented that his LBP increased with the wear of body armor and field gear after activation.  His pain was controlled with medications.  He had declined both injections and surgery.  His neurological examination was normal.  The range-of-motion (ROM) was slightly reduced by pain as documented below.  Multiple signs of non-organic pain were present.  At the VA Compensation and Pension examination performed on 16 November 2004, (3 months after separation) the CI reported that his LBP began bothering him after he was activated a year earlier.  He denied any neurological deficits and did not use a back brace.  Provocative testing for nerve root irritation was positive, but the neurological examination was normal.  The deep tendon reflexes were reduced, but equal left and right which is probably a normal variant.  The ROM was slightly reduced as documented below.  Neither spasm nor guarding was documented.  He was able to toe and heel walk, stand on his heels, toes, and on one foot.  The Board also noted that a 25 September 2006 physical medicine note documented a normal motor examination and reflexes.

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)	PT ~4 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	80	80	
Combined (240)	220	220	
Comment	Signs of non-organic pain 		
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the back condition at 10% and 20%, respectively, using the codes 5299-5242 (analogous to degenerative arthritis of the spine) and 5243 (degenerative disc disease), respectively.  The VA rater stated that the 20% rating was supported by “painful straight leg raises, tenderness to percussion, and diminished deep tendon reflexes.”  The Board did not find support for a 20% rating in the VASRD using this information and found no route to a rating higher than that adjudicated by the PEB.  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 back condition.  The Board also noted that the evidence does not support the presence of an unfitting radiculopathy at separation.

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 subjective back pain 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.

RECOMMENDATION:  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 20140509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB	06 JUI	2016

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, AR20160003044 (PD201403206)

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