RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX             	CASE: PD-2014-03408
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040924 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Cargo Specialist, medically separated for “chronic low back pain,” with a disability rating of 0%.  

CI CONTENTION:  The applicant requests consideration of all conditions.  The depression condition was not adjudicated by the Medical Evaluation Board (MEB) nor the Physical Evaluation Board (PEB). 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 based upon a 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 - 20040728	VARD - 20050620	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain ... No Neurological Deficits	5237	0%	Lumbosacral Disc Disease, L5-S1	5243	40%	20050519	
Borderline High Blood Pressure	Not Unfitting	Hypertension	7010	0%	NSC	
Hearing Loss Left Ear	Not Unfitting 	Hearing Loss Left	6100	0%	NSC	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY: 

Chronic Low Back Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented aggravation of chronic back pain during physical training for an activation in January 2003.  There were occasional bilateral radicular symptoms.  Imaging (MRI) demonstrated degenerative disc disease with a protrusion (left paracentral) at L5/S1.  Numerous normal neurological examinations were in evidence, with none to the contrary; and, a neurosurgical consultant did not recommend surgery.  There were no STR entries indicating significant range of motion (ROM) limitation, and one estimating flexion to 80 degrees (normal 90).  There was ample STR documentation of normal gait, with no entries suggestive of abnormal gait or use of assistive device, and no suggestion of abnormal spinal contour.  There was no documentation of incapacitating episodes.  A series of epidural steroid injections provided temporary relief, but did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for an MEB which in turn forwarded “chronic low back pain with L5-SI herniated nucleus pulposus and degenerative disc disease” to the Physical Evaluation Board (PEB).
  
An orthopedic addendum to the NARSUM, dated 27 February (7 months before separation), documented recalcitrant back pain with “left lower extremity radicular symptoms” and observed that the CI “ambulates with a cane, favoring his right side.”  Normal neurologic findings were recorded (5/5 strength, symmetric reflexes, intact sensation).  The NARSUM examination on 20 May 2004 (4 months before separation) documented constant back pain rated 7/10 and “worsening to 10/10 with prolonged standing, sitting, or walking, with bending, lifting, and with any impact activity.”  Neither radicular symptoms nor gait disturbance were mentioned.  The physical examination recorded tenderness, no spasm, and all normal neurological findings.  The NARSUM referenced formal ROM measurements for the MEB by physical therapy (7 June 2004, 3½ months before separation) showing flexion to 80 degrees and combined ROM of 215 degrees (normal 240).

A VA Compensation and Pension (C&P) examination was conducted on 19 May 2005 (8 months after separation) and there was no documentation of interim injury or other exacerbation of the condition.  The examiner noted chronic back pain with flare-ups “about three times a year” causing the CI to “lose 50% of his [ROM],” aggravated by “walking more than half an hour ... [or] ... lifting more than 10 pounds ... climbing or stooping.”  Non-specific “radicular pain” was referenced, with no mention of sensory or motor symptoms.  The physical examination recorded “walks ... holding his back rather still,” spasm, “minimal weakness” with repetitive motion, and symmetric reflexes.   The listed ROM measurements were flexion to 30 degrees and combined ROM of 140 degrees “due to pain.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s rating under code 5237 (lumbar strain) cited flexion of 80 degrees which was not consistent with VASRD §4.71a criteria for its 0% determination.  The VA’s rating under 5243 (intervertebral disc syndrome) cited the C&P flexion of 30 degrees which is the 40% threshold.  The Board was faced with a disparity between the STR and VA ROM evidence with obvious implications for the rating recommendation (PEB 10%, VA 40%).  The Board thus deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  It was also noted that there was evidence for at least intermittent gait disturbance, a 20% criterion.  The STR ROM evidence was significantly closer to separation than that from the C&P, and it was corroborated by numerous STR entries over a stable period preceding separation.  There was not a reasonable accounting for the development of such severe ROM impairment in the interval between the Service and VA examinations, and there was no evidence from which to conclude that the severity at separation approached that portrayed by the post-separation C&P measurements.  Members thus agreed that the STR ROM evidence carried the determinant probative weight for the Board’s recommendation.  

Members deliberated whether the abnormal gait criterion should be conceded in support of a 20% recommendation.  Although the orthopedic addendum to the NARSUM documented a significant gait disturbance, it did not appear to be present at the time of the NARSUM.  The gait description by the C&P examiner was subject to interpretation as to whether it satisfied the criterion.  Most importantly, there was convincing evidence from STR entries throughout the clinical course that abnormal gait was not a persistent feature of this case.  Members thus agreed that there was insufficient evidence in support of a 20% recommendation on this basis.  There was no documentation of incapacitating episodes that would provide for a higher rating under that formula. 

The Board also considered if additional service rating was justified for peripheral nerve impairment due to 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.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Since there was no documented sensory impairment or motor weakness that would have impacted military occupation-specific activities, members 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 10% rating for the lumbar disc condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

Contended PEB Conditions: Borderline High Blood Pressure and Left Hearing Loss.  The Board’s main charge was to assess the fairness of the PEB’s determination that the contended conditions were not unfitting. These conditions were not permanently profiled or implicated in the commander’s statement and were judged to meet retention standards.  There was no performance-based evidence from the record that either of them significantly interfered with satisfactory duty performance at separation.  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 blood pressure or hearing conditions; thus, neither is eligible for Service disability rating.  

BOARD FINDINGS:  In the matter of the lumbar disc condition, the Board unanimously recommends a Service disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended borderline high blood pressure and left hearing loss 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	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5242	10%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140523 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX AR20160014203 (PD201403408)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 10% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA