RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03776
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030410

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Communications Security Repairer) medically separated for chronic low back pain (LBP).  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 L4 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disk disease (DDD)” and “chronic pain with interrupted sleep,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic LBP” 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:  “Constantly losing employment due to service connected disability.”  The CI’s 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 200302112	VA* -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5293-5299-5295	10%	Low Back Pain, Disc Bulge And Spondylosis, Lumbar DDD	5292	20%	No Exam	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20030516 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were updated 23 September 2002 for code 5293 (incapacitating episodes), and then changed to the current §4.71a rating standards on 26 September 2003.  The older VASRD standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  The VASRD normal ROM values were not in effect prior to 26 September 2003, and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately.  For the reader’s convenience, the 2003 rating codes under discussion in this case are excerpted here.

5292 Spine, limitation of motion of, lumbar:
   Severe.........40%; Moderate.........20%; Slight.........10%
5293 Intervertebral disc syndrome:
With incapacitating episodes having a total duration
…of at least two weeks but less than four weeks during the past 12 months........20%
…of at least one week but less than two weeks during the past 12 months ..........10%
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion................40%
Spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position……20%
With characteristic pain on motion.....10%
With slight subjective symptoms only....0%

Additionally, there was no VA Compensation and Pension examination in file and the nearest VARD referenced active duty STR as evidence for its rating.     

Low Back Pain.  The CI reported no specific direct history of back trauma.  His LBP developed in 2000 associated with heavy lifting during military training.  The STR had numerous clinical encounters of frequent exacerbations of back pain flare-ups to include radicular pain into both buttocks and legs; sometimes in the left leg and other times in the right leg.  An initial radiographic work-up in January 2001 revealed evidence of DDD at L4-5 and S1 spinal level.  Despite medication, physical therapy, profiling, epidural steroid injections, and radio-frequency therapy, his back pain symptoms intermittently continued and worsened.  A repeat magnetic resonance image performed in March 2002 was essentially unchanged from prior exams.  Eventually he was referred to Orthopedics who did not recommend surgical intervention.  Due to persistent painful symptoms he was permanently profiled in September 2002 and referred to an MEB.  At the MEB narrative summary examination performed 7 months prior to separation, the CI’s chief complaint was “I'm in constant pain and cannot perform my soldier duties” without additional comments.  On physical examination there was tenderness, spasms, and guarding about the lumbar spine.  Thoracolumbar ROM (measured 3 months prior to separation) documented was decreased with painful motion.  Spinal motion of rotation was not documented.  Sensory and motor exams of the lower extremities were intact.  The STRs utilized by the VA for rating purposes represented a period from 4 March 1999 through 3 January 2003.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB dual coded the back condition utilizing the 2002 VASRD rating rules as 5293 (Intervertebral disc syndrome) with the analogous code of 5295 (lumbosacral strain) at 10% impairment.  The VA rated at 20% under the single 2002 VASRD code of 5292 (limitation of lumbar motion).  Despite having numerous clinical encounters within the case file, the Board members apportioned exclusive exam probative value to the physical therapy/MEB report 3 months prior to separation due to its clinical depth of physical findings and its time reference to the CI’s date of separation.  The presence of painful motion clearly supported the PEB’s 10% rating; however, the additional presence of lumbar spasms, guarding, and abnormal spinal contour (as indicated by decreased lordosis) more appropriately reflected a 20% impairment rating under 2002 VASRD analogous code of 5295 (lumbosacral strain).  The Board also considered code 5293, but there was insufficient evidence of “incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.”  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 lumbar spine 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 lumbar spine condition and IAW VASRD 2002 spine rules, the Board unanimously recommends a disability rating of 20%, coded 5299-5295.  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	
Chronic Low Back Pain 	5299-5295	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140814, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160003779 (PD201403776)

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