RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03999
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Cable Systems Installer/Maintainer, medically separated for “chronic low back pain with L4-L5 degenerative disc disease” 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 - 20040802	VARD - 20050113	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with L4/L5 Degenerative Disc Disease	5237	10%	Degenerative Disc Disease L4-L5	5242	10	STR	
			Paresthesias in the L5 Distribution associated with Degenerative Disc Disease L4-L5	5242-8520	10	STR	
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 April 2001 while playing football.  His pain resolved within a short time, but in May 2003, he “was rear-ended in a motor vehicle accident” and his back pain became chronic.  Radiographic X-ray studies in January 2004 were normal, but a magnetic resonance imaging performed in February 2004 showed a “disk protrusion with nerve root displacement.”  At the time of the physical therapy clinic appointment on 5 November 2003, the CI reported back pain that radiated to his right foot and his right leg would go “numb with prolonged standing.”  The examiner recorded that the CI “ambulated into the clinic in no apparent distress.”  On examination the CI had normal lumbar lordosis, sensation and reflexes.  His range of motion (ROM) was limited as indicated in the chart below and he experienced painful motion.  He had tenderness to palpation of the paraspinal muscles, 4/5 weakness in the knee flexors bilaterally, and a positive straight leg test (for radicular symptoms) at 70 degrees.  

At the time of the Family Practice clinic appointment on 26 January 2004, the CI reported back pain after falling down stairs and landing on his back.  The examiner recorded that the CI had no radiation of pain.  On examination the CI had tenderness to palpation, muscle spasm and decreased flexion due to pain.  His strength and reflexes were normal.  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 MEB.  The MEB forwarded “degenerative disc disease” and “intermittent paresthesias [abnormal sensations] in the L5 distribution secondary to [degenerative disc disease]” for PEB adjudication.  

The 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 ~13 Mo. Pre-Sep	MEB ~6 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
Flexion (90 Normal)	“50% of Normal”	35	90	
Combined (240)	-	145	240	
Comments	Limited, painful motion; tenderness	Limited motion; tenderness; spasm	Painful motion	
§4.71a Rating	20%	20%	10%	

The MEB NARSUM examination on 26 May 2004 (6 months prior to separation) noted complaints of “constant aching pain in his lower back…radiating into the right leg down to the toes…”  Physical exam showed pain and spasm to percussion and palpation.  The CI’s ROM was also limited as indicated in the chart above.  

At the VA Compensation and Pension (C&P) examination on 2 April 2005, performed 4 months after separation, the physical exam showed no limitation of motion (see chart above), but the CI had pain at the maximum degrees of flexion and extension.  There was “no evidence of spasm, weakness, or tenderness…, his gait was described as normal…, [and] he had no postural abnormalities or fixed deformities.”  His reflexes and sensation were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the degenerative disc disease and intermittent paresthesias in the L5 distribution conditions as a single unfitting condition coded 5237 (lumbosacral strain) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The VA rated the back condition 10% coded 5242 (degenerative arthritis of the spine) based on the STR and missing a scheduled VA exam, citing the 10% VASRD criteria, and additionally rated the CI’s paresthesias which were associated with the back condition at 10% coded 5242-8520 (mild, incomplete paralysis of the sciatic nerve) based on the STR, citing “incomplete paralysis below the knee which [was] mild.  A second VARD dated 21 April 2005 continued those ratings based on the VA exam cited above.  

In assigning probative value to these conflicting examinations, the Board noted that the MEB measurements were consistent with other proximate (pre-separation) exams by physical therapy and family practice.  Therefore, based on all evidence and associated conclusions, Board consensus was that preponderant probative value should be assigned to the MEB NARSUM ROM 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 NARSUM examination.  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.  

The Board next considered if the intermittent paresthesias in the L5 distribution (peripheral nerve impairment) was unfitting and if additional disability rating was justified.  The CI reported numbness to his right foot.  However, 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 the intermittent paresthesias in the L5 distribution (peripheral nerve impairment) was not unfitting and 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 5237 and a not unfitting (and therefore not rated) intermittent paresthesias in the L5 distribution (peripheral nerve impairment).  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the paresthesias due to the back condition, the Board unanimously recommends no change in the PEB adjudication (as not separately unfitting or ratable).  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 with L4/L5 Degenerative Disc Disease (with Intermittent Paresthesias)	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140723, with attachments
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 XXXXXXXXXXXXXXXXXXXXX AR20160009452  (PD201403999)

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