RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03700
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Health Care Specialist) medically separated for back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  “Low back pain with radicular symptoms to the right leg (pain with mild weakness and numbness)” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated low back pain without significant neurologic abnormality as unfitting rated 10%, with application of AR 635-40.  The CI made no appeals and was medically separated. 

CI CONTENTION:  His conditions, both mental and physical, continue to worsen and negatively impact his daily activities.  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 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:  

IPEB – Dated 20050630	VA* – based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain, without Significant Neurologic Abnormality	5299-5237	10%	Chronic Myofascial Pain Syndrome of Lumbar Spine	5237	20%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060523 (most proximate to date of separation [DOS]) 

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  In July 2003, while deployed overseas, the CI suffered an injury to his back.  He was able to complete his deployment and returned to home station.  Magnetic resonance imaging was performed in September 2004.  It showed mild disc bulging and facet arthropathy at L5-S1, but no disc herniation, spinal stenosis, or nerve root compromise. The CI was treated with medication, physical therapy (PT), transcutaneous electrical nerve stimulation (TENS), and other conservative therapeutic modalities.  In spite of all treatment efforts, his LBP persisted and an MEB was initiated.  The MEB narrative summary was dated 6 April 2005.  The CI reported that his LBP was constant, sharp, and throbbing. Exacerbating factors included prolonged sitting, prolonged standing, bending, running, jumping, or walking.  Physical examination of the back revealed some tenderness in the lumbar region.  On neurological exam, the deep tendon reflexes were normal.  There was mild weakness in the right leg, and a very mild subjective decrease in sensation on the right.  Range-of-motion (ROM) was measured by PT, and is summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	PT ~ 5 mos. Pre-Sep	
Flexion (90 Normal)	50	
Extension (30)	25	
R Lat Flexion (30)	20	
L Lat Flexion (30)	15	
R Rotation (30)	40	
L Rotation (30)	25	
Combined (240)	165	
Comment	Painful motion	
§4.71a Rating	20%	

The CI was medically separated from service on 31 August 2005.  He was scheduled for a Compensation and Pension (C&P) exam on 21 October 2005, but he failed to appear for that evaluation.  The February 2006 VARD was based solely on the data in his STR.  

The Board directed attention to its rating recommendation based on the evidence.  At the April 2005 MEB exam, thoracolumbar forward flexion was measured at 49 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when thoracolumbar forward flexion is greater than 30 degrees but not greater than 60 degrees.  The Board determined that a 20% disability rating was appropriate in this case.  

The Board tried to find a path to a higher rating, and considered using other diagnostic codes which could be applied to the CI’s condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a seriously disabling back disorder or spinal abnormality which would justify a higher rating.  The Board also considered the matter of radiculopathy.  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, electromyography and nerve conduction velocity studies were normal.  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 recommends a 20% disability rating for the unfitting back condition.  It meets criteria for the 20% rating level, based on thoracolumbar forward flexion greater than 30 degrees but not greater than 60 degrees.  

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.  As noted above, PEB reliance on AR 635-40 may have been operant in this case.  The CI’s back condition was adjudicated independently of that regulation by this Board.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, IAW VASRD §4.71a.   There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, 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	
Low Back Pain, without Significant Neurologic Abnormality	5299-5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140716, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20160004324 (PD201403700)

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