RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04176
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20050929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheel Vehicle Mechanic) medically separated for chronic back pain.  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 and referred for a Medical Evaluation Board (MEB).  The “lumbago with right sided radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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/Naval 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 20050722	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	0%	Degenerative Disc Disease, Lumbar Spine	5237	10%	20051212	
			Right Lower Leg Radiculopathy …	8520	0%	20051212	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 15 	
RATING:  0%	COMBINED RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060320 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Back Pain Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s back condition began in 2002 after falling.  He reinjured his back in military police officer training.  Radiographic studies showed sacralization of L5 (congenital variant) and magnetic resonance imaging (MRI) showed lumbar degenerative changes, with a bulging disc and narrowing without impingement on the cord or nerve roots.  There was no surgical indication.  

At the time of the orthopedic clinic appointment on 28 March 2005 (6 months prior to separation), the CI reported a similar injury history with complaints of back pain and pain radiating down both legs with the right greater than the left.  The CI was taking a nonsteroidal anti-inflammatory (Mobic).  On examination gait and reflexes were normal.  Strength was “greater in the left thigh,” sensory was “right leg seems to be less than the left in response to light touch,” and toe walk increased back pain.  There was positive Patrick’s (and Faber) on the right (for radiating symptoms); right straight leg raise (SLR) caused pain at 30 degrees elevation.  Back motion was “limited 30 degrees at flexion with onset of pain in the lower back area.”  The assessment was low back pain with right leg L5 radiculopathy.  

The MEB NARSUM exam on 31 May 2005 (4 months prior to separation) noted complaints of low back pain (LBP) with intermittent leg pain on right per the DD Form 2808, Report of Medical Examination.  The CI had discontinued taking Mobic.  Physical exam showed pain with flexion at 70 degrees as well as a positive SLR on the right at 65 degrees elevation (for radiating symptoms).  The remainder of his physical exam was insignificant and noncontributory. 

At the VA Compensation and Pension (C&P) neurologic examination on 13 December 2005, performed 2 months after separation, the CI reported constant LBP with pain being 9/10 up to 75% of the time.  He could walk as far as he needed to and had weakness and numbness in the knees, more often on the right.  Physical exam showed a normal gait with normal motor and sensory exams.  Reflexes were trace to 1+ and equal bilaterally.  The neurologist stated that the CI had “no neurologic deficit related to lumbar disc disease.  … (range-of-motion or functional capacity) … I could detect no objective evidence of true weakness, incoordination, fatigue or lack of endurance.”  The record indicated the CI cancelled his VA joint exam.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under 5237 code (lumbosacral strain), citing pain on flexion to 70 degrees without tenderness or spasm (likely application of the pain policy/AR 635-40 for rating only mechanical limitation of motion).  

The VA assigned a 10% rating also using code 5237 citing the MEB exam (as the PEB cited).  The VA also awarded a non-compensable rating of 0% under 8520 (sciatic nerve) for less than mild incomplete paralysis.  Although there were no complete goniometric range-of-motion (ROM) exams, IAW VASRD §4.70 (inadequate examinations) all treatment notes and the NARSUM exam documented painful or pain limited thoracolumbar forward flexion.  Only one more remote note indicated forward flexion which was not greater than 60 degrees.  The preponderance of the evidence supported a 10% rating IAW VASRD §4.59 (painful motion) or the spine formula under VASRD §4.71a.  

The Board considered whether an additional Service rating could be recommended under a peripheral nerve code, as conferred by the VA (0% for the right lower extremity).  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no motor or sensory impairment in this case and possible decreased reflex testing had no functional implications, and could not be linked to significant functional consequence.  There is thus insufficient evidence of a separately ratable functional impairment (with fitness implications) from any potential non-pain radiculopathy; and, the Board cannot support a recommendation for an additional Service disability rating on this basis.  The Board concluded therefore that no peripheral nerve condition could be recommended for additional disability rating.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the 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, PEB reliance on the USAPDA pain policy for rating the back condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the back pain condition, the Board unanimously recommends a disability rating of 10%, coded 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 Back Pain	5237	10%	
RATING	10%	

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

AR2016000551 I, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.   I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure·