RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04084
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Intelligence Analyst, medically separated for “chronic low back pain with a herniated nucleus pulposus and degenerative changes,” with a  disability rating of 10%.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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 based upon a 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 - 20070907	VARD - 20080505	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with a Herniated Nucleus Pulposus and Degenerative Changes…	5237	10%	Low Back Degenerative Disc Disease with Foraminal Disc Protrusion and Spinal Stenosis L2-3	5237	NSC	20080409	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Chronic Low Back Pain with a Herniated Nucleus Pulposus and Degenerative Changes.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2005 after heavy lifting.  He then began to have radiation of pain in the right lower extremity.  An MRI on 12 April 2006 showed a large lateral disc protrusion at the L2- L3 vertebral level causing moderate spinal stenosis.  There was also degenerative disc disease (DDD) of L5-S1 and a posterior tear of the disc.  Neurosurgery evaluations were done in June and August 2006 and recommended continued conservative treatment.  There was no surgical indication and treatment to include epidural steroid injections, physical therapy (PT), nerve root injections and transdermal electrical nerve stimulation did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain with degenerative disc disease and herniated nucleus pulposus” for PEB adjudication.  

At the MEB NARSUM examination on 8 August 2007, 2 months pre-separation, the CI complained of continued back pain with minimal radicular symptoms.  Physical examination showed midline tenderness, with normal strength, sensation and reflexes, and negative testing for radiculopathy.  Thoracolumbar range of motion (ROM) measurements performed by PT in May 2007 showed limited and painful motion with flexion of 45 degrees (normal 90) after repetition.  

At the VA Compensation and Pension (C&P) examination in April 2008, 6 months post-separation, the CI reported constant 7/10 pain with radiation down the legs.  Pain was elicited by physical activity, prolonged sitting or standing.  The CI denied any periods of incapacitation.  On exam, there was a normal gait and spinal contour, no paraspinal muscle spasm or tenderness, normal reflexes, normal strength, and negative testing for radiculopathy.  Flexion was to 90 degrees with no additional limitations from pain, fatigue, weakness, lack of endurance, or incoordination after repetition.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing ROM flexion of 45 degrees limited by pain and tenderness.  The VA initially did not service connect the lumbar spine condition.  Subsequently the VA assigned a 20% rating using an analogous 5237-5242 code (lumbosacral strain/degenerative arthritis of the spine) and a 10% rating under the 8520 code (sciatic nerve, incomplete, mild) based on the VA C&P examination 17 months after separation, citing forward flexion of the thoracolumbar spine at 60 degrees with pain, effective to the date of separation.  

The Board deliberated the probative value of the pre-separation MEB NARSUM and post-separation VA examinations.  The MEB examination was more proximate to the date of separation and of higher quality with respect to repetitive measurements and therefore deemed to be of higher probative value.  The Board therefore 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 MEB NARSUM examination.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty; examinations prior to separation indicated normal strength, reflexes and gait.  The Board therefore concluded that an 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 low back condition, coded 5242 (degenerative arthritis of the spine).  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  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 medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain with Herniated Nucleus Pulposus and Degenerative Changes	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated, w/atchs
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 AR20160011804 (PD201404084)

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