RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00272
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030703

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Information Systems Operator-Analyst, medically separated for “chronic low back pain” rated 	at 10%.

CI CONTENTION:  The CI indicates she is currently rated by the VA at 20% each for her neck and back.  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 - 20060322	VARD - 20061102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Degenerative Disc and Joint Disease, Thoracolumbar Spine	5237-5243	10%	20061102	
Spondylosis Identified at T12-L1	Not Unfitting					
Scoliosis at T12-L5	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:    

Chronic Low Back Pain (LBP).  The MEB forward three back conditions to the PEB for adjudication – “herniated nucleus pulposis at L4-5” that did not meet retention standards and “spondylosis identified at T12-L1” and scoliosis at T12-L5” which did meet retention standards.  The PEB adjudicated the herniated nucleus pulposis condition as unfitting, and the other two conditions as not unfitting.  The low back condition can only be provided a single disability rating IAW VASRD 4.71a and therefore, any contributions to the CI’s disability from the not unfitting conditions is subsumed in the rating of the unfitting herniated nucleus pulposis condition below.

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery in June 2004 for a herniated disc (L4-5).  Following surgery the CI continued to have LBP with intermittent radiation to both lower extremities, but mainly the left.  Repeat MRI in November 2004 showed some scar tissue at the level of the surgery.  The CI was referred to pain clinic.  A scoliosis survey showed a “mild” degree of thoracolumbar scoliosis and a transitional vertebra at S1, which is variation of normal.  A computed tomography scan showed the scarring noted on the MRI and also a new bulging disc at L3-4.  Further treatment reduced the lower extremity symptoms but the CI continued to have LBP and the improvement was not sufficient to allow unrestricted duty.  The MEB forwarded “herniated nucleus pulposus,” “spondylosis…T12-L1,” and “scoliosis T12-L5” for PEB adjudication.

At an orthopedic pain evaluation on 21 September 2005 the CI reported constant LBP aggravated by activity that did not radiate, but there was numbness and tingling of the right toes.  The physical examination showed a normal gait and station.  There was no tenderness of the lumbar spine or muscles.  Tests for sacroiliac joint pain were negative.  Back range of motion (ROM) was described as the CI could “almost touch feet” with forward flexion.  Lower extremity strength and reflexes were normal.  

The MEB NARSUM examination on 24 February 2006 (4 months prior to separation) noted complaints of increasing LBP.  The CI was taking morphine twice daily, and a muscle relaxant, as well as an antidepressant medication for pain and sleep.  Physical examination showed tenderness of the lower back, minimal spasm, and normal gait.  Neurologic examination was normal, and ROM was measured with forward flexion at 90 degrees and combined ROM at 220 degrees (normal 240).  Provocative tests for nerve root irritation were negative, though it did produce severe spasm with testing on the right side.  

At the 14 August 2006 VA Compensation and Pension (C&P) evaluation, performed 1 month after separation, the CI reported constant back pain rated 4-5/10 in severity, with shooting pain down her left leg into the foot.  She reported taking opioid pain medication three times per day and a muscle relaxant for the pain.  The CI indicated she was using no assistive devices.  Physical examination showed an antalgic gait that impaired walking.  There was tenderness and muscle spasm of the thoracolumbar spine.  There was an abnormal spinal contour with flattening of the back and mild scoliosis and the CI’s posture was stooped.  ROM was recorded as flexion to 80 degrees and combined ROM at 220 degrees.  There was no additional loss of ROM with repetition.  The CI could rise on the toes and heels and squat without difficulty.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing was negative.  

At the time of the orthopedic clinic appointment on 30 August 2006, the CI reported low back pain rated 5/10 in severity being treated with opioid pain medication and a muscle relaxant.  Physical examination revealed a normal gait and no tenderness of the spine or back.  Neurologic examination was normal.  ROM was reported as “okay.”
 
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5243 (intervertebral disc syndrome), citing ROM limited by pain as well as tenderness.  The VA also rated the low back 10%, but used the 5237-5243 code (lumbosacral strain – intervertebral disc syndrome), based on the VA C&P examination 1 month after separation, citing pain and muscle spasm not resulting in an abnormal gait or abnormal spinal contour.  The Board majority agreed that a 10% rating, but no higher, was justified for 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 cited orthopedic evaluation, MEB NARSUM and VA C&P exams.  Although an abnormal gait was noted at the C&P examination, there was no muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour at the orthopedic examination or the MEB NARSUM examination prior to separation and the Board majority concluded the next higher 20% rating was not justified at separation on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  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 low back condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI experienced intermittent radiating pain to the lower extremities 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 evidence in this case that motor weakness or sensory deficit existed to any degree that could be described as functionally impairing at the time of separation.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

Contended PEB Conditions: “Spondylosis identified at T12-L1” and “Scoliosis at T12-L5.”  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  As noted above the contended not unfitting conditions of the back were not separable from the unfitting chronic low back pain condition for individual disability ratings.  Neither of the conditions were listed on the permanent profile or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions caused back impairment that could be considered separately unfitting.  The Board’s VASRD §4.71a for the chronic low back pain conditions subsumes any disability related to these conditions.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain, the Board majority recommends no change to the PEB’s adjudication.  In the matters of the contended “spondylosis identified at T12-L1” and “scoliosis at T12-L5” conditions, the Board unanimously recommends no change to the PEB’s fitness determinations.  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 20150417, 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 
XXXXXXXXXXXXXXXXXX, AR20160019814 (PD201500272)

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