RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03978
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040917

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E1, Radio Operator/Maintainer, medically separated for “chronic back pain…without neurologic abnormality,” with a disability rating of 10%.  

CI CONTENTION:  “Please consider 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 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 - 20040816	VARD - 20050728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5239	10%	Degenerative Disk Disease	5242	20%	20041220	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain Diagnosis.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in November 2002 after attempting to lift something.  Radiographic X-ray, studies showed bilateral spondylolysis at L5 with grade one spondylolisthesis of L5.  Electromyography studies performed on 4 May 2004 was suggestive of some nerve root irritation at L5 S1 level on the right side and clinical correlation was recommended.  Evaluation by neurosurgery recommended non-surgical treatment. Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic pain with spondylolysis and degenerative disc disease” for PEB adjudication.  

The range of motion (ROM) examinations 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)	PT/MEB ~3 Mos. Pre-Sep	VA C&P ~3 Mos. Post-Sep	
Flexion (90 Normal)	80	80 (70)	
Combined (240)	220	190 (170)	
Comments	Painful motion; tenderness	Painful motion; tenderness: DeLuca estimate additional loss of 10% on repetition (value est in parenthesis)	
§4.71a Rating	10%	10% (VA 20%)	

The MEB NARSUM examination on 24 June 2004 (3 months prior to separation) noted complaints of low back pain with complaints of occasionally having his legs go numb (DD Form 2807-1).  Physical examination showed some tenderness in both paravertebral lower lumbosacral regions.  No muscle atrophy of the lower extremities.  Straight leg raising test was negative.  No motor or sensory abnormality in the lower extremities.  The CI was able to tandem walk on his heels and toes with no difficulty.  

At the 20 December 2004 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported subjective complaints of chronic lower back pain radiating to right hip and leg.  Standing in one position for more than 10-15 minutes caused pain.  Sitting in chair for more than 20 minutes caused pain.  Physical examination showed straight leg raise testing positive at 60 degrees, normal curvature of the spine, tenderness, able to stand on toes and heels, lower extremities reflexes normal, strength normal and there was a normal gait.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10% coded 5239 (spondylolisthesis), citing range of motion limited by pain with localized tenderness.  The VA rated the degenerative disk disease, spondylolysis L5-S1 condition 20% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 3 months after separation, citing limitation of motion and additional percentage applied as provided by DeLuca criteria.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB, NARSUM, and VA, examinations.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  

The Board considered if there was additional functional loss due to pain and weakness with use beyond that reflected in the measured limitation of thoracolumbar spine ROM after repetitive motion.   The Board noted the VA increased the rating to 20% based on additional functional loss due to pain.  However, the examiner’s estimated additional 10% loss of ROM after repetition under DeLuca observations would not have decreased the ROMs sufficiently to meet the 20% rating criteria (forward flexion not greater than 60 degrees; or, the combined ROM not greater than 120 degrees – see chart above).  The Board considered if there was additional functional loss due to pain and weakness with use beyond that reflected in the measured limitation of thoracolumbar spine ROM after repetitive motion.  Considering VASRD §4.40, §4.45, and §4.59, the Board agreed that there was some additional functional limitation due to painful motion during repetition or flare‐ups; however, the evidence did not show additional functional limitations which approximated the criteria for the next higher rating.  
The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (physical medicine, 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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain condition.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

28 JUL 2016

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 XXXXXXXXXXXXXXXXXX, AR20160009436 (PD201403978)

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,
I accept the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA