RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	   CASE:  PD-2014-03950
BRANCH OF SERVICE:  Army 	   SepAration date:  20070123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Healthcare Specialist, medically separated for “chronic low back pain due to degenerative disc disease with facet syndrome…,” with a disability rating of 0%.

CI CONTENTION:  The CI contended for all of his 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 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:  

SERVICE PEB – Dated 20061214	VARD - 20081020  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Due to DDD With Facet Syndrome	5299-5242	0%	Lumbosacral Strain With Degenerative Changes	5242	0%	20081020	
Reactive Tuberculin Test	Not Unfitting 	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING FOR ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY: 

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in August 2005 while in basic combat training with insidious onset and no specific injury or trauma. Magnetic resonance imaging (MRI), February 2006, showed degenerative disc disease with bulging discs and moderate narrowing of the neuro foramina (space through which the spinal nerve roots pass) at the L4-5 level.  Examination in the physical medicine clinic, 1 June 2006, noted report of pain with standing, extension, and running, and painful motion on examination without evidence of radiculopathy due to compression of spinal nerve roots. Orthopedic surgery recommended non-surgical treatment.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for an MEB.  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)	MEB ~2 Mo. Pre-Sep
(20061115) p.31	VA C&P ~20 Mo. Post-Sep
(20080929) p.107	
Flexion (90 Normal)	90	90	
Combined (240)	235	240	
Comment	No tenderness.
Gait normal.  
No signs of radiculopathy.	No change after repetition.
No painful motion.
No muscle spasm.
Normal posture and gait.
No tenderness.
No signs of radiculopathy.	
§4.71a Rating	10%	0%	

The MEB NARSUM examination, 15 November 2006, 2 months before separation, noted that the CI denied any history of trauma or changes in bowel or bladder habits; occasionally has pain from his lower back to the right scapula; and experienced a tingling sensation involving the plantar aspect of his feet.  The MEB physical exam noted the CI ambulated well, demonstrated no tenderness to palpation, was able to rise on his heels and toes without difficulty, and demonstrated normal strength, reflexes and sensation.  No muscle spasm or altered contour was noted.  Provocative examination maneuvers for evidence of radicular symptoms due to spinal nerve root irritation were negative.  The thoracolumbar ROM was noted to be normal except for 5 degrees loss of extension (see chart).  It was noted that the CI was not currently a surgical candidate; however, he could require surgical intervention at a later date.    

At the VA Compensation and Pension (C&P) examination, 29 September 2008, 20 months after separation, the CI reported back pain as a dull ache at rest becoming a sharp pain with movement, with no acute flare-ups that have been incapacitating.  Examination revealed normal posture and gait, normal curvature of the spine, symmetry in appearance, no pain on motion, spasm, weakness or tenderness, and postural abnormalities.  The thoracolumbar range-of-motion was normal (see chart).  The VA C&P examiner noted an MRI performed in June 2008 which was essentially unchanged from the MRI over 2 years before (mild disc bulges).
 
The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5299-5242 code (Degenerative arthritis of the spine), citing combined thoracolumbar range of motion greater than 240 degrees.  The VA also assigned a 0% rating using the 5242 code (degenerative arthritis of the spine) based on the VA C&P examination 20 months after separation, citing a non-compensable evaluation is granted when forward flexion is greater than 85 degrees and combined range of motion of the thoracolumbar spine is greater than 235 degrees.  The VA also quoted DeLuca, stating consideration for a rating is not warranted.  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined motion greater than 120 degrees but not greater than 235 degrees at the time of the MEB NARSUM examination.  The Board noted the PEB cited the combined range-of-motion as greater than 240 degrees, but apparently the PEB did not truncate measurements which exceeded the VASRD normal for rotation and lateral bending in accordance with note 2 of VASRD§4.71a (“The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.”).  The Board noted the post-separation VA examination did not support a 10% rating however this examination was considered to be of lower probative value for recommending a rating at the time of separation due to the more than 1 year time elapsed since separation.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic low back pain due to degenerative disc disease condition coded 5299-5242.    
 
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the reactive tuberculin test was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The reactive tuberculin test referred to a positive skin test for exposure to tuberculosis.  Follow up evaluation found no evidence of active disease.  A positive skin test is not disqualifying for continued military service.  The test result was not profiled or implicated in the commander’s statement and not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition interfered with satisfactory duty performance.  After due deliberation 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 reactive tuberculin test and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic low back pain due to degenerative disc disease condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended reactive tuberculin test condition, the Board unanimously recommends no change from the PEB determination 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	RATING	
Chronic Low Back Pain Due To Degenerative Disc Disease	5299-5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140825, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-00), 2900 Crystal Drive, Suite 300, Arlington,  VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160009419  (PD201403950)

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 
( ) OVA