RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00065
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Cavalry Scout, medically separated for “chronic back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the Board 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 - 20060727	VARD - 20080229	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Chronic Lumbar Strain	5299-5239	10%	20071217	
Compartment Syndrome, Leg	Not Unfitting	Exercised Induced Compartment Syndrome, Right Lower Extremity	8799-8722	10%	20071217	
		Exercised Induced Compartment Syndrome, Left Lower Extremity	8799-8722	10%	20071217	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment records (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in July 2005 after stepping off of a treadmill.  Radiographic imaging in February 2006 documented a mild disc bulge at the L4-L5 vertebral level and degeneration at the facet joints of L3-L5 with no evidence of misalignment.  Electrophysiologic studies in February 2006 documented “borderline abnormal,” and “mild” L5 nerve root irritation bilaterally.  At an orthopedic visit in February 2006, 6 months pre-separation, physical examination showed no spinous or paraspinal tenderness, and no evidence of muscle spasm, painful motion, or abnormal motion.  Gait, strength, reflexes, and sensation were normal and there was no evidence of nerve tension.  At a physical therapy visit on 5 June 2006, 3 months pre-separation, range of motion (ROM) measurements were flexion of 70 degrees (normal 90) with normal extension, and right sided flexion and rotation.  Left sided flexion was to 22 degrees, and left rotation was to 15 degrees (normal 30).  Three weeks later, ROMs by physical therapy were recorded as flexion to 80 degrees (normal 90), extension to 25 degrees (normal 30), right rotation to 20 degrees (normal 30), with normal bilateral flexion and left sided rotation.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “lumbar spondylosis” for PEB adjudication.

At the MEB and NARSUM examinations on 26 June 2006, 2 months pre-separation, the CI reported constant back pain that worsened throughout the day, and inability to run or even walk more than 1/2 mile, or wear load bearing equipment.  The physical examination showed tenderness at the L3-L4 vertebral level, a normal gait and painful motion, along with decreased sensation in the L4-L5 distribution on the right lower extremity.  

At the VA Compensation and Pension (C&P) examination on 17 December 2007, 16 months after separation, the CI reported intermittent pain with numbness in the lower extremities bilaterally; and flares ups from standing “at times.”  He denied radicular symptoms, night awakening, incapacitating episodes, and use of assistive devices.  Physical examination showed a normal back with tenderness, and no evidence of spasm, painful motion, or radiculopathy.  Flexion was to 80 degrees (normal 90) with no pain after repetition.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 10% rating analogously coded 5299-5237 (lumbosacral strain), citing localized tenderness and limitation of motion.  The VA also assigned a 10% rating analogously coded 5299-5239 (spondylolisthesis or segmental instability) based on the VA C&P examination 16 months after separation, citing limitation of forward flexion.  

The Board considered the evidence for a higher rating.  There was no evidence of limitations of motion in support of a 20% rating.  There was no documentation of spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour in support of a higher rating.  There was no documentation of incapacitating episodes requiring bed rest from a physician for a higher rating under code 5243.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (orthopedic, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  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 motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore 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 low back condition.  

Contended PEB Condition: Bilateral Lower Extremity Compartment Syndrome.  The Board’s main charge is to assess the fairness of the PEB’s determination that compartment syndrome of the bilateral lower extremities 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.  

According to STR and the MEB NARSUM, and an orthopedic visit in December 2005, the CI reported anterior leg pain and occasional numbness and foot weakness made worse after “all activity.”  Physical examination showed tenderness without foot weakness.  At an orthopedic visit in January 2006, the CI reported “foot drop” with prolonged activity.  Physical examination showed 5/5 strength of bilateral foot dorsiflexion.  Two days later, after running 5 minutes, physical examination showed decreased strength (4/5) of dorsiflexion and the CI was diagnosed with bilateral compartment syndrome.  In February 2006 the CI reported failure of the walk portion of fitness testing due to pain and leg weakness.  The June 2006 MEB NARSUM physical examination showed full ROM of the lower extremities, with normal gait and heel to toe walk.  
There were no profiles in evidence for the bilateral compartment syndrome.  The condition was not specifically implicated in the commander’s statement and was not judged to fail retention standards.  The bilateral condition 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.  After due deliberation in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  In the matter of the contended bilateral lower extremity compartment syndrome conditions, the Board majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent recommended re-characterization of separation and did not elect to submit a minority opinion.  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 20140428, with attachments
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

20 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160018840 (PD201500065)

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