RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04247
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E5, Radio Operator/Maintainer, medically separated for “chronic back pain due to lumbar degenerative disc disease [DDD] without neurologic abnormality,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends his condition continues to worsen.  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 on 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 - 20060412	VARD - 20070423	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	10%	Lumbar Disk Disease With Foraminal Stenosis	5243	10%	20061127	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Back Pain Due to DDD without Neurologic Abnormality.    According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain (with radiating pain in the right leg) began in November 2004, after physical training, and without any specific injury or trauma.  Magnetic resonance imaging (MRI) in April 2005, showed L5-S1 bilateral moderate facet hypertrophy and degeneration with associated bi-foraminal stenosis contacting both exiting L5 nerve roots.  Electrodiagnostic studies performed in November 2005 were negative for radiculopathy.  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 a MEB.  The MEB forwarded “low back pain due to [DDD]” for PEB adjudication.

During the MEB NARSUM examination on 26 October 2005, (7 months pre-separation), the CI reported constant 2/10 pain with intermittent 7/10 pain in the right leg with certain activities.  There was no loss of sensation and no bowel, bladder or erectile dysfunction.  The examiner noted an antalgic gait, tenderness and right paralumbar muscle spasms.  Sensory and reflexes were normal.  Straight leg raise testing reproduced the CI’s back pain.  Flexion was to 90 degrees (normal) and without pain; extension was limited to 10 degrees (normal 30) with pain.  At the MEB examination (recorded on DD Forms 2807 and 2808), dated November 2005, (7 months pre-separation), the CI reported low back pain and numbness.  The examiner documented the ability to bend and touch the toes easily, with negative testing for radiculopathy.  

At the VA Compensation and Pension (C&P) evaluation in November 2006, (6 months post-separation), the CI reported constant low back pain radiating to the right calf.  Pain was aggravated by prolonged sitting or standing.  Physical examination showed posture was “slightly in forward flexion” and that the CI needed to get up and walk around from time to time.  There was positive testing for radiculopathy on the right, and normal motor and sensory findings.  Flexion was to 60 degrees with objective findings of pain.  The general VA C&P examination conducted the same day noted normal posture and gait.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5242 code (degenerative arthritis of the spine), citing range of motion limited by pain and tenderness.  The VA assigned a 10% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 6 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  The Board considered the evidence for a higher rating.  At the VA C&P examination, the CI reported no interim history of further injury, surgery, or other aggravation of the condition.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  The Board agreed that a 10% rating, but no higher, was justified for the 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) reported on the MEB examination.  In considering other pathways to a higher rating, it was noted that muscle spasm associated with a mildly antalgic gait was documented in the MEB NARSUM but not addressed on the MEB DD Form 2808, and therefore was an inconsistent finding.  The VA general C&P examination specifically noted normal gait and posture, while the VA evaluation (earlier in the day) noted that the posture was “slightly in forward flexion.”  The Board concluded that this was not a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported pain radiating into the right leg, however, electrodiagnostic studies showed no evidence of neuropathy or 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.  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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain condition.  

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20141106, 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, AR20160011490 (PD201404247)

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