RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03391		
BRANCH OF SERVICE:  Army	BOARD DATE:  20150702
Separation Date:  20090317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Optical Lab Specialist) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “L5-S1 Spondylosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-50.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the low back pain (LBP) condition as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant has asked for consideration of all conditions in his application.  His complete submission is at Exhibit A.

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 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 20090112	VA* - N/A	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5237	10%	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  70% (Pension Purposes Only)	
*Derived from VA Rating Decision (VARD) dated 20130805 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Back Condition. The MEB Narrative Summary (NARSUM) exam, approximately 8 months prior to separation, documented that the CI reported onset of LBP in January 2008 which became chronic and constant.  The CI underwent physical therapy (PT) and aquatics with minimal pain improvement.  Pain was 7/10 at rest and increased to 9/10 with activity.  The physical exam findings were a markedly slowed gait in combat boots; normal reflexes, strength and sensation.  There was tenderness over the lumbar paraspinal muscles.  The PT-performed goniometric range-of-motion (ROM) evaluation documented forward flexion of 70 degrees (normal 90) and a combined ROM of 180 degrees (normal 240).  A lumbar spine X- was inconclusive, a provocative discogram (inject dye with pressure around spine re-creates symptoms) was positive with a repeat discogram being negative.  The lumbar spine MRI documented a minimal right paracentral disc protrusion with a tear at the L5-S1 level.  

An evaluation by orthopedics in November 2008, 4 months prior to separation, indicated LBP with mild radicular symptoms down the left side and into the lower back with complaints of “radicular symptoms in her right leg and difficulty walking in a straight upright posture.”  Exam noted the CI appeared uncomfortable and was able to walk on her toes and heels.  Sensation was intact to light touch over both feet with the CI reporting some slight decrease over her left foot.  Strength was normal.  There was no VA Compensation and Pension (C&P) exam performed proximate to separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5237 (Lumbosacral strain) and rated at 10%.  The PEB based their rating on limited forward flexion and cited VASRD §4.10 (Functional impairment), §4.40 (Functional loss), §4.45 (The joints) and §4.59 (Painful motion).  There was no VA documentation until 2013 (over 4 years after separation with a VARD granting a VA pension for a condition not related to the spine) and there was no C&P spine exam done at that time.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The examiner noted a markedly slowed gait and tenderness over the lumbar paraspinal muscles; however, there was no evidence of muscle spasm or guarding, and no abnormal spine contour.  The CI met the 10% rating criteria for tenderness, ROM for forward flexion, or combined ROM.  There was no evidence of incapacitating episodes for alternative rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the subjective decreased sensation over her left foot (radiculopathy); but there were no significant objective findings and no functional link to fitness in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  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 for the chronic LBP 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.  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 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 20140714 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

06 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160003323 (PD201403391)

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