RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03938
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060311

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E4, Avenger Crewmember, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI asked for a review of all conditions.  The CI’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 - 20041101	VARD - 20060412	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Lumbar DDD	5237	20%	20060321	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2002 when, as a passenger, he was involved in a motor vehicle accident on his way to weekend drill.  His initial diagnosis was lumbar strain and he was treated with pain medication and muscle relaxers.  Diagnostic imaging indicated mild osteoarthritis at L5-S1 and disc herniation indenting the thecal sac and narrowing the right area or nerve outlet.  

He attended physical therapy (PT) until March 2003, when it was noted that he had significant improvement in his low back pain.  Electrodiagnostic testing in April 2003 was normal and the CI was not a surgical candidate.  The CI did not seek any medical attention following the PT sessions and was placed in the MEB/PEB process when he failed Soldier Readiness Processing (SRP) for activation.  The MEB forwarded “chronic low back pain with herniated nucleus pulposus at L5-S1 and with lumbar spondylosis” for PEB adjudication.  

The range-of-motion (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)	Mil Exam
~14 Mo. Pre-Sep	MEB/NARSUM
~13/11 Mo. Pre-Sep	VA C&P
~8 Mo. Post-Sep	
Flexion (90 Normal)	90	90	60	
Extension (30)	10	10	30	
R Lat Flexion (30)	20	20	30	
L Lat Flexion (30)	20	20	30	
R Rotation (30)	--	25	30	
L Rotation (30)	--	25	30	
Combined (240)	>140 ; <235	190	210	
Comment	Painful motion; tenderness; no neurologic deficits	Tenderness; normal gait	Muscle spasm; tenderness; flexion decreased to 50 on repetition	
§4.71a Rating	10%	10%	20%	

At the NARSUM evaluation the CI complained of chronic severe back pain with radiating pain down both legs.  He was taking anti-inflammatory medication, but had not sought medical care in the last year.  The examiner stated, “His back pain is apparently not severe enough that it interferes with his manual labor at his civilian job.”  The examiner delayed dictating the MEB pending electrodiagnostic testing.  An electrodiagnostic study done in July 2004, 12 months prior to separation, for complaints of “radiating pain, numbness and tingling down the legs,” was normal with “no evidence of lumbar radiculopathy.”  

The MEB physical examination began in June 2004 and completed in August 2004 (13 and 11 months prior to separation), noted tenderness to palpation, normal curvature, negative straight leg raising (provocative test for radicular symptoms), normal gait, and intact heel and toe walk.  Limited ROMs accomplished in June 2004 are summarized in the chart above.  

At the VA Compensation and Pension (C&P) examination in March 2006, performed 8 months after separation, the CI reported sharp and dull pain that was intermittent in nature without significant lower extremity radiation, no bowel or bladder incontinence, and three episodes of incapacitating back pain over the last year that required 1-2 days bed rest.  Physical exam showed moderate paraspinal muscle spasm and tenderness with limited ROM as summarized above.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  Motor function was normal.  The orthopedic specialist examiner indicated spasm increased and forward flexion decreased following repetition, including: a treadmill and fatigue-failed after three repetitions on a floor to waist-level lifting station.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5237 code (lumbosacral strain), citing painful motion with localized tenderness.  The VA assigned a 20% rating using the 5237 code (lumbosacral strain) based on the VA C&P examination, 8 months after separation, citing reduced forward flexion.  The Board noted the limitation of thoracolumbar motion recorded in the MEB NARSUM examination and the PEB noted ROM with pain and tenderness that supported the 10% rating.  The Board noted the VA examination, which was closer to separation than the Service examinations, was more detailed, and reported ROM performed after repetitive motion.  Therefore the Board placed greater probative value on the VA examination.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the VA examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the electro-diagnostic studies showed no evidence of neuropathy or radiculopathy.  Physical examinaitons (PT, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore 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 disability rating of 20% for the back condition, coded 5299-5237  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  T

he Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain, Without Neurologic or Electro-Diagnostic Abnormality	5299-5237	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

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 AR20160011785 (PD201403938)

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