RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03510
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Motor Transport Operator) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lower back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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 20040916	VA* - (Same Day as Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Lumbar S5-S1 Broad Based Right Paracentral Disc Protrusion	5242	NSC	20041027	
Other x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20070503 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Condition.  A radiology consultation dated 30 June 2004 noted a history of lower back pain with radiation to the right lower extremity.  The magnetic resonance imaging performed at that time demonstrated degenerative disc disease and herniation at the lower lumbar and lumbosacral levels with impingement of the S1 nerve root.  The CI was treated with physical therapy, epidural steroid injections and pain medication without pain resolution.  The narrative summary physical examination demonstrated full active range-of-motion (ROM), positive radiculopathy testing on the right, decreased sensation on the lateral right thigh, and an antalgic gait.  

At the VA Compensation and Pension (C&P) examination performed on the DOS, the CI reported constant, shooting, lower back pain which worsened with walking and with weather changes.  On physical examination there was painful motion, positive radiculopathy testing on the right, tenderness to palpation over the lumbar spine and sacroiliac joints.  There was no postural abnormality or spasm.  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)	MEB ~3 Mo. Pre-Sep
 	VA C&P On the Date of Sep
	
Flexion (90 Normal)	90 (95)	55 > 50 after repetition	
Extension (30)	10	30 (35)	
R Lat Flexion (30)	30 (45)	20	
L Lat Flexion (30)	30 (45)	25	
R Rotation (30)	30 (35)	25	
L Rotation (30)	30 (35)	15	
Combined (240)	220	#	
Comment	AO	AO	
§4.71a Rating	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the lower back pain condition at 10%, coded 5243 (intervertebral disc syndrome).  VA did not service connect the back condition until approximately 3 years after separation.  The Board considered whether the evidence supported a higher than 10% rating.   VA measurements met criteria for a 20% rating.  Board members agreed that the evidence did not support an unfitting right lower extremity radiculopathy for an additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lower back pain 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 lower back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  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	
Lower Back Pain 	5243	20%	
COMBINED	20%	

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 XXXXXXXXXXXXXXXXXX, AR20160002829 (PD201403510)

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 20% 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