RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04203
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080817

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Signal Intelligence Analyst, medically separated for “chronic low back pain,” 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 - 20080606	VARD - 20090123	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Degenerative Disc Disease with Sciatica (Claimed as Lumbago)	5243	10%	20080919	
Costochondritis	Not Unfitting	Costochondritis	5297-5020	0%	20080919	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

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 October 2006 without any specific injury or trauma.  Magnetic resonance imaging (MRI) in December 2007 showed degenerative disc disease with bulging intervertebral discs at L4-5 and L5-S1.  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 “lumbago, degenerative disk 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)	
MEB ~5 Mo. Pre-Sep
	
PT ~5 Mo. Pre-Sep
	
VA C&P ~1 Mo. Post-Sep
	
Flexion (90 Normal)	-	90,90,90	90	
Combined (240)	-	150	220	
Comments	Painful motion; tenderness; and functional loss	Painful motion	Tenderness	
§4.71a Rating	10%	10%	10%	

At the MEB examination (recorded on DD Forms 2807, 2808 and NARSUM) dated 18 March 2008, 5 months prior to separation, the CI reported that he had “numbness and tingling into the buttocks and left lower extremity with prolonged sitting...”  Physical examination showed normal gait, motor strength, reflexes and sensation.  There was decreased ROM, but the examiner did not list the actual measurements.  The examiner also noted an “increase in pain, fatigue, weakness, and lack of endurance with repeated ROM and use.”  There was mild tenderness to palpation to the lumbar spine, but no spasms were noted.  The physical therapy ROM study on 20 March 2008, 5 months before separation, showed painful limitation of motion as indicated in the chart above.  At the physical medicine clinic appointment on 1 April 2008, 5 months before separation, the CI reported back pain and pain on the outer side of left leg.  His pain started slowly and increased with activities.  Physical examination showed mild tenderness in the paraspinals and straight leg raise testing caused left-sided back pain.  Gait, motor strength, reflexes and sensation were normal.  An electromyogram (EMG)/nerve conduction velocity (NCV) study was normal and showed no evidence of left L1-S1 radiculopathy or generalized peripheral neuropathy.   

At the VA Compensation and Pension (C&P) examination on 19 September 2008, performed 1 month after separation, the CI reported “back pain with associated radiation from his left buttock …to his left knee.”  His pain was worsened by prolonged sitting on hard surfaces and with repetitive bending and stooping.  Physical examination showed that the CI’s ROM was limited as indicated in the chart above, but there was no evidence of painful motion.  He had tenderness in the lumbosacral spine with a normal gait and spinal contour, no paraspinal muscle spasm, normal reflexes, normal strength, and normal sensation.  Examination maneuvers for radicular signs were negative.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5299-5237 (analogous to lumbosacral strain), citing tenderness and painful motion.  The VA also rated the back condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 1 month after separation, citing “combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.”  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 120 degrees but not greater than 235 degrees as reported on the  physical therapy and VA 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 justifiable on this basis.  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.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under that coding alternative.  The Board also considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes, sensation and gait.  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 sensory deficit or motor weakness which would impact military occupation specific activities.  There was no evidence in this case that a sensory deficit or motor weakness existed to any degree that could be described as functionally impairing.  Therefore, the Board concluded 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that costochondritis was 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 costochondritis was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. The CI had several medical visits for chest pain when performing pushups or bending.  Two electrocardiograms (EKGs) were normal.  A chest X-ray series in December 2006 demonstrated a multifocal nodularity of the left eighth posterior rib that may have represented a vessel on end accentuated by an overlying rib.  A repeat chest X-ray series was normal in July 2007.  A VA examination demonstrated no rib or sternum pain on palpation.  The aforementioned was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance at separation.  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 costochondritis condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended costochondritis condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140926, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

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 XXXXXXXXXX, AR20160011610 (PD201404203)

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