RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03959
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070313

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Plumber) medically separated for a chronic low back pain (LBP) condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile which allowed for an alternate aerobic event to satisfy physical fitness standards and referred for a Medical Evaluation Board (MEB).  The “low back pain” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic mechanical low back pain” as unfitting, rated 10%, with likely application AR 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requested consideration of all conditions in his application.  He noted that he was given a higher rating for his condition by the VA.  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 20070202	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical LBP	5299-5237	10%	Low Back Strain	5237	20%	20070914	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20080305 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Condition.  The narrative summary (NARSUM) noted the CI developed LBP during training in August 2006, without a specific traumatic incident.  Initially, there was radiation to both lower extremities (LEs) with paresthesias (abnormal sensory disturbance of peripheral nerves, typically numbness and tingling), which had resolved.  Scant notes in the service treatment record noted magnetic resonance imaging (MRI) 11 September 2006. This included a thoracic spine MRI which noted “minimal degenerative disc disease” without disc bulging or spinal canal stenosis, and a normal lumbar MRI.

At the MEB exam, 2 months before separation, the CI reported thoracolumbar (TL) back pain and was taking anti-inflammatory medication one to three times per day as needed.  The MEB physical exam noted lumbar tenderness.  There was normal strength, sensation, reflexes, and range-of-motion (ROM) of all extremities.  Physical therapy-measured TL ROM for the MEB was flexion of 45, 44, and 46 degrees (normal 90); with combined TL ROM of 150, 164, and 155 degrees (normal 240); ROM was also limited by pain.  The therapist stated that “measurements were consistent and the test was felt to be valid.” 

At the VA Compensation and Pension (C&P) exam, 6 months after separation, the CI reported LBP with radiation down the left LE.  He reported that he used a back brace and a cane occasionally during a flare-up, but denied any incapacitating episodes.  The exam noted a normal gait, with normal strength, sensation, reflexes, and ROM of the extremities.  There was tenderness of the lumbar spine without muscle spasms.  Lumbar ROM was flexion 50 degrees and combined ROM of 145 degrees.  There was no additional loss of ROM with repetition.  Lumbosacral X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbar strain) and the VA rated it 20%, coded 5237.  The Board agreed that the evidence supports a 20% rating for the TL back condition according to the current VASRD General Rating Formula for the spine in effect on the date of separation based upon TL flexion of “greater than 30 degrees but not greater than 60 degrees”.  The Board reviewed to see if the next higher evaluation of 40% was supported but there was no evidence in record of “forward flexion of the TL spine 30 degrees or less; nor, favorable ankylosis of the entire TL spine.”  The Board next reviewed to see if a higher evaluation than 20% was achieved by coding with 5243 (intervertebral disc syndrome) and rating the condition based on incapacitating episodes, defined by the VASRD as treatment and bed rest prescribed by a physician.  However, there was no documentation in the record of incapacitating episodes due to the back condition.  The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment, due to the back condition, as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Initially the notes indicate the CI reported radiating pain and paresthesias to the LEs, but at the time of the MEB exam they had resolved; at the post-separation C&P exam the CI again reported radiation of pain to the left LE.  However, there was no MRI evidence of nerve impingement and the MEB and C&P exams both noted normal LE strength, sensation, and reflexes bilaterally.  The general spine rating as specified in §4.71a subsumes “pain (whether or not it radiates)”, and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  The Board thus determined the evidence supports a 20% rating for the TL back condition, coded 5299-5237, and no higher.  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 TL back 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.  As discussed above, the PEB may have relied on AR 635-40 for rating the low back condition in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the TL 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.  

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 Condition	5299-5237	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

JUL 18 2016

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, AR20160004437 (PD201403959)

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