RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04344
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, O3, Air Defense Artillery Officer, medically separated for “chronic low back pain [LBP],” with a disability rating of 10%.

CI CONTENTION:  The CI’s condition continues to worsen and negatively affects his daily living.  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 - 20030121	VARD - 20030414	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5293, 5299-5295	10%	Chronic Lower Back Pain	5293-5292	20%	20021016	
			Radiculopathy, RLE	5293-8526	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s LBP condition began in 1995-1996 without specific trauma.  The LBP progressed over the next several years of pain despite treatment with physical therapy (PT), medications, and duty restrictions.  A PT note dated 14 May 2002, 11 months prior to separation, noted flexion and extension were 75% normal with normal sensation and motor function; however, on 2 July 2002, it was noted to be reduced to 50% normal and he was discharged from PT for failure to improve.  In orthopedics 2 weeks later, the CI was noted to be in no acute distress and to arise with minimal difficulty from a chair.  He avoided forward flexion though and kept his back straight.  The neurological examination was normal other than subjective diminished sensation over the top of the right foot.  The range of motion (ROM) was painful, but normal other than flexion which was limited to 20 inches above the floor (approximately 45 degrees – normal 90).  Tenderness was absent and spasm was not documented.  It was noted that an MRI (undated and not in evidence) showed a L4-5 central herniated disc protrusion.  

The CI repeatedly declined the option for a recommended lumbar surgery and conservative treatment did not result in improvement sufficient to allow unrestricted duty and was referred for a MEB.  The MEB forwarded “chronic LBP secondary to herniated nucleus pulposus” for PEB adjudication.  At the MEB examination in September 2002, 6 months prior to separation, the CI reported he suffered from chronic LBP with a ruptured disk.  The physical examination showed L4-5 herniated nucleus pulposus, radiculopathy and a severely limited ROM without quantification.  The MEB NARSUM examination on 9 October 2002, 5 months prior to separation, noted complaints of radicular symptoms marked by pain shooting down right leg from the thigh to the toes.  He denied incontinence.  He was unable to perform physical training or wear body armor.  He reported the onset of LBP with brushing his teeth or donning his boots.  Physical exam showed moderate paraspinal tenderness, constricted range of motion (without quantification) and normal motor, sensory, and reflex examinations of both lower extremities.  Tenderness was present.  Spasm was not documented.  The gait was normal.  At the VA Compensation and Pension (C&P) examination in October 2002, performed 5 months before separation, the CI reported he injured his back initially in 1992 following a jump at airborne school where he fell on his back.  He reported that he rarely lost work due to his pain, but took Percocet (a narcotic) up to 4 times a day.  The pain radiated to both legs, left greater than right.  The physical exam showed painful motion and tenderness without spasm.  The gait was slow (without further characterization) and the neurological examination normal.  Signs of radiculopathy were present: radicular pain bilaterally with pain and positive straight leg raises (provocative tests for nerve root irritation).  The ROM was limited with 20 degrees of flexion and a combined ROM of 120 (normal 240).  There was additional limitation from fatigue, weakness, and lack of endurance (with repetition).  A primary care note dated 1 April 2003, 4 days prior to separation, noted that the ROM was decreased from pain.  However, the gait was normal (but slow) and the neurological examination intact.  The CI was evaluated in the pain clinic on 5 April 2003, 1 month after separation.  He reported progressive pain.  He noted numbness and weakness of the RLE.  He denied incontinence.  On examination, he could flex to 60 degrees and extend to 20 degrees (normal 30).  Motion was painful and spasm was present.  The gait was painful, but neurological examination intact.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5293 code (Intervertebral Disc Syndrome) and an analogous 5295 code (Lumbosacral Strain), citing a L4-5 herniated nucleus pulposus without neurologic abnormality for documented chronic paravertebral muscle spasm and painful motion.  The VA assigned a 20% rating using a 5293-5292 code (Intervertebral Disc Syndrome and Spine, Limitation of Motion, Lumbar) based on the VA C&P examination 5 months before separation, citing a moderate restriction of ROM to 20 degrees.  The VA assigned an additional 10% rating using a 5293-8526 code (Intervertebral Disc Syndrome and Paralysis of the Anterior Crural Nerve (Femoral)) citing a mild peripheral nerve disability on the right side causing pain, tingling and numbness.  The Board considered the evidence.  Unlike the current spine rules, the interim rules separate the thoracic and lumbar ROM and do not use quantifiable levels for rating; rather, qualifiers such as slight, moderate, or severe were employed.  The CI demonstrated painful motion on multiple examinations.  The limitation in motion varied, but the examinations proximate to separation showed a predominately moderate loss (60 degrees several times and 45 degrees once).  Incapacitation was not recorded in the service treatment records and the CI reported to the VA that he rarely lost time from work from the LBP.  Tenderness was typically present whereas spasm was typically not present or at least not recorded.  The neurological examination was usually normal.  If abnormalities were documented, they were sensory and limited to the top of the right foot.  Radiation of pain was present though.  The Board first considered if a separately unfitting radiculopathy was present and separation and did not find sufficient evidence to recommend this as an additional finding.  It then considered the rating for the LBP.  A moderate level of motion limitation supports a 20% rating under the code 5292, limitation of lumbar motion.  Although the CI clearly had a herniated disc, incapacitation was not present to support the use of this code.  The Board also looked at the code 5295, lumbosacral strain, and it also supports a 20% rating, but it does not describe the condition as well as the code 5292.  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 chronic LBP condition, coded 5292.  

BOARD FINDINGS:  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5292 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 LBP	5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141203, 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, AR20160018409 (PD201404344)

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