RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03326
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Petroleum Supply Specialist, medically separated for “chronic low back pain,” with a disability rating of 0%.  

CI CONTENTION:  “Please consider all conditions.”  The applicant’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 - 20071228	VARD - 20080922	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Degenerative Disk Disease, Lumbosacral Spine with Associated Mild Lumbar Scoliosis	5242	10%	20080110	
Intermittent Headaches 	Not Unfitting	Recurrent Muscle Tension Headache	8199-8100	NSC	20080110	
Adjustment Insomnia	Not Unfitting	Adjustment Disorder with Depression	9413	10%	20080905	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Low Back Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the low back condition began approximately 2 years prior to referral for MEB.  A lumbar spine X-ray dated 26 March 2007, showed mild lumbar scoliosis (abnormal lateral spine curvature) without other findings.  A lumbar spine magnetic resonance imaging (MRI) on 11 May 2007 showed a subtle left lateral disc bulge at L4-L5 causing moderate left neural foraminal (nerve root opening) encroachment and mild to moderate spinal canal stenosis (narrowing) at L5-S1.  At an orthopedic spine surgery consultation on 5 July 2007, the CI complained of increased low back pain.  He reported leg weakness and occasional thigh numbness and tingling.  The CI rated the back pain as moderate and characterized it as constant, sharp, stabbing, and aching.  Pain was exacerbated by activity, standing, walking, bending, and lifting and was relieved by nothing.  The physical examination documented a normal gait.  The lumbar spine examination revealed spinous process and paraspinal muscle tenderness and discomfort with flexion and extension; straight leg raise (SLR) tests were negative.  Strength, sensation, and deep tendon reflexes (DTRs) were normal.  The diagnosis listed low back pain, L5-S1 degenerative disc disease (DDD), and L5-S1 (left paracentral) and L4-L5 (bilateral foraminal) disc herniations.  The surgeon recommended physical therapy (PT), pool therapy, core strengthening, and an epidural steroid injection.  

The NARSUM, dated 15 November 2007 and 3 months before separation, noted complaints of daily 6-7/10 low back pain with associated stiffness.  He denied neurological complaints and bowel or bladder incontinence.  The CI failed conservative management and pain was exacerbated by prolonged sitting and standing, bending, climbing, running, ruck marching, and wearing Kevlar.  Active medications included Neurontin (anticonvulsant).  The focused lumbar spine examination revealed no tenderness or spasm.  Lumbar spine range-of-motion (ROM) was flexion to 90 degrees (normal), extension to 25 degrees (30 normal), and bilateral lateral flexion/rotation to 30 degrees (normal).  There was pain at the end of the ROM.  Strength and DTRs were normal.  The diagnosis listed chronic non-radicular low back pain.  

At the VA Compensation and Pension (C&P) examination, performed on 10 January 2008 and 2 months before separation, the CI complained of daily 5-8/10 low back pain with associated leg numbness, lasting 5-10 minutes, once or twice a week.  He denied radicular pain, flare-ups, and bowel or bladder dysfunction.  Pain was exacerbated by prolonged walking, impact activities, and lifting more than 20 pounds.  The CI reported missing 30 duty days, and being prescribed one day of bed rest, in the past year secondary to the chronic lumbar disorder.  His active medication, Neurontin, provided no benefit.  The physical examination documented a normal gait with no assistive devices.  The thoracolumbar spine examination revealed that the CI listed slightly to the right with no obvious right paralumbar muscle spasm.  There was bilateral focal paralumbar muscle tenderness with no overt scoliosis or muscle atrophy.  Goniometer measured thoracolumbar spine ROM was flexion to 70 degrees (90 normal), extension to 20 degrees (30 normal), bilateral lateral flexion to 20 degrees (30 normal), and bilateral rotation to 20 degrees (30) degrees.  Repetitive (X3) ROM elicited pain throughout lumbar motion but no fatigability, incoordination, or reduction in ROM.  Strength, sensation, and DTRs were normal.  The diagnosis listed lumbosacral spine DDD with mild lumbar scoliosis.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB, using Service and DoD rating policies, assigned a 0% rating under an analogous 5237 code (lumbosacral strain) citing chronic low back pain, L5 to S1 disc protrusion and mild to moderate canal stenosis by imaging, full ROM, pain at end point of ROM, normal gait, no tenderness, and no spasm.  The VA assigned a 10% rating under the 5242 code (degenerative arthritis) based on the VA C&P examination 2 months before separation, and cited chronic low back pain, lumbosacral spine DDD, mild lumbar scoliosis by X-ray, L4-S1 disc herniation by MRI, leg numbness (5-10 minutes), bed rest prescribed for one day, no radicular pain, no flare-ups, no assistive devices, normal gait, slight list to the right, muscle spasm, paralumbar muscle tenderness, decreased ROM, and repetitive ROM eliciting pain but no fatigability, incoordination, or reduction in ROM.  The ROM values in the MEB examination did not attain the minimum 10% rating based upon the General Rating Formula for Diseases and Injuries of the Spine.  The ROM values in the C&P examination were consistent with the 10% rating (flexion of greater than 60 degrees but not greater than 85 degrees; or a combined ROM of greater than 120 degrees but not greater than 235 degrees of the thoracolumbar spine) but no higher.  While there was mild scoliosis by X-ray, there was no overt scoliosis by exam.  Proximate exams documented tenderness, but there was no evidence of muscle spasm, guarding, abnormal spinal contour, or abnormal gait.  Although the CI experienced intermittent leg numbness, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  The Board therefore concluded that additional disability rating was not justified on this basis.  Other routes to a rating higher than the PEB’s 0% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45, and no evidence of incapacitating episodes that would justify a minimum rating under the alternative Formula for Rating Intervertebral Disc Disease.  The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the intermittent headaches and adjustment insomnia conditions were 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 intermittent headaches and adjustment insomnia conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and 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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended intermittent headaches and adjustment insomnia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain 	5299-5237	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140619, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160006094 , 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

Enclosure