RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03985
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060320

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Transporter, medically separated for “chronic non-radiating low back pain,” with a disability rating of 0%.  

CI CONTENTION:  The applicant requests consideration of all conditions in their application.  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 - 20060214	VARD - 20060819	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	DDD, Lumbar Spine	5242	10%	20060714	
Hyperlipidemia	Not Unfitting	Not Service Connected	
Mixed Urinary Incontinence	Not Unfitting	Mixed Urinary Incontinence	7542	40%	20060714	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

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 1999 with a history of injury or trauma.  The CI was treated conservatively with anti-inflammatory and muscle relaxing medications, and a profile (activity modification).  A magnetic resonance imaging (MRI) performed in 2000 was negative.  The pain returned gradually in 2002 without any specific injury or trauma.  Repeat MRIs performed in July 2002 and August 2005 showed a mild degenerative disc disease in the lower lumbar spine with multi-level disc herniation resulting in moderate foraminal stenosis at L3-4 and L4-5 and mild stenosis at L5-S1.  The back condition was again treated conservatively to include epidural steroid injections and physical therapy, but low back pain persisted and could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and she was referred for an MEB.  The CI declined surgical intervention.  The NARSUM physical examination performed in January 2006, 2 months prior to separation, demonstrated low back discomfort with lower extremity strength testing.  The neurologic examination was normal including negative radicular testing.  Range of motion (ROM) was 85 degrees of forward flexion (normal 90) and combined ROM of 225 degrees (normal 240).  Gait was normal.  

At the VA Compensation and Pension (C&P) examination on 14 July 2006, performed 4 months after separation, the CI reported chronic LBP with infrequent pain radiating down the posterior thigh to the knee and lifting was limited to 20 pounds.  She reported no incapacitation in the past 12 months.  Physical examination revealed thoracolumbar tenderness to palpation bilaterally.  There was no evidence of radiating pain on movement, muscle spasm, or posture, spinal contour or gait abnormality.  Range of motion (ROM) was 90 degrees of forward flexion (normal 90) and combined ROM of 220 degrees (normal 240).  There was no additional ROM limitation with repetition.  The neurologic examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under analogous 5299-5237 code (Lumbosacral strain), citing pain and limitation of motion.  The VA assigned a 10% rating using 5242 code (Degenerative arthritis of the spine) based on the VA C&P examination 4 months after separation, citing range of motion (of which flexion was normal) with no altered gait or contour.  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/or combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on the MEB physical therapy and VA C&P examinations proximate to 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 that basis.  There was no evidence of 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.  

The Board also considered whether an additional disability rating might be justified for peripheral nerve impairment due to radiculopathy.  Electrodiagnostic studies were normal as evidenced by physical exams (MEB NARSUM, and VA C&P) and revealed no objective findings that would impact 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.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  Instead, functional impairment was attributed to the back pain.  The Board therefore concludes 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 recommended a disability rating of 10% for the back condition, coded 5242.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hyperlipidemia and mixed urinary incontinence conditions were 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 hyperlipidemia and mixed urinary incontinence were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and 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 hyperlipidemia and mixed urinary incontinence contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended hyperlipidemia and mixed urinary incontinence conditions, the Board unanimously recommends no change from the PEB determinations 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 the prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical D'lsability Agency (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160009442  (PD201403985)

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