RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03395
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Wheeled Vehicle Mechanic) medically separated for lumbosacral strain.  The back 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 “lumbago” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “lumbosacral strain,” 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 requests 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 20081105	VA* – (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Lumbosacral Spine Strain	5237	20%	20090327	
Other Conditions x 0 (Not In Scope)	Other x 5	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20090402 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY:  

Low back pain (LBP).  In November 2007 while deployed overseas, the CI was injured by an improvised explosive device.  Following that incident he developed LBP, primarily in the left lower back with occasional radiation to the left leg.  He was treated with physical therapy, medication, and other conservative measures.  In April 2008, he re-injured his back by lifting two heavy 5-gallon oil cans.  Magnetic resonance imaging showed mild disc protrusion at L5-S1, with mild narrowing of the neural foramen and central canal, but no evidence of nerve root impingement.  In September 2008, the CI was seen by orthopedics and an MEB was recommended.

The MEB physical examination (PE) was on 7 October 2008.  The CI reported that his pain was a pinching sensation and it was made worse by squatting, bending, running, or jumping.  He had difficulty mounting and dismounting from tactical vehicles.  He reported that his pain improved somewhat with rest.  On PE of the lower back, there was tenderness to palpation in the L4-L5 region.  Straight leg raise (SLR) was negative bilaterally.  Toe walking and heel walking were normal.  Back range-of-motion (ROM) was measured with a goniometer.  His forward flexion was 65 degrees, and combined thoracolumbar ROM was 155 degrees.  The narrative summary diagnosis was: “lumbago.”  

In March 2009, 3 months later, he had a VA Compensation and Pension (C&P) exam.  He reported that he was taking Oxycontin to help alleviate his LBP.  The CI was walking with a limp, favoring his right leg.  On PE of the back, there was tenderness.  Neurological exam was normal.  SLR was positive.  Back ROM was measured with a goniometer.  Forward flexion was 55 degrees, and combined thoracolumbar ROM was 145 degrees.  The C&P examiner’s diagnosis for the back condition was: “Lumbosacral spine strain.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the back pain condition 10% and 20% respectively, both used code 5237 (lumbosacral strain). The October 2008 MEB exam was just 2 months before the DOS and therefore had significant probative value.  The March 2009 C&P exam, 3 months after separation, therefore had diminished probative value.  At the MEB exam, forward flexion was 65 degrees, and combined thoracolumbar ROM was 155 degrees. IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  A 10% rating is also warranted for combined ROM of the thoracolumbar spine that is greater than 120 degrees, but not greater than 235 degrees. Therefore, the Board determined that a separation disability rating of 10% was appropriate.  

The Board tried to find a path to a higher rating.  Based on the October 2008 MEB exam, 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. There were no incapacitating episodes documented in record for a higher rating alternatively based on incapacitating episodes. The Board also considered the matter of radiculopathy.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a radiculopathy rating at separation.  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.  The CI did have neurological symptoms.  However, the Board did not find sufficient performance-based evidence that the neurological condition caused significant interference with satisfactory performance of required military duties.  Additionally, the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the 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 LBP condition (lumbosacral strain) 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 20140630, 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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160004094 (PD201403395)

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