RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00293
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040529

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Truck Driver, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “Months before discharge, the VA gave me a rating of 20% for my 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 - 20040329	VARD - 20030124	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243-5237	10%	Status post Lower Back Injury, with Lumbar Radiculopathy L4-L5 (Claimed as Back Injury)	5295	20%	20021210	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain (LBP) condition began in September 2002 after sustaining a fall while walking backward down stairs.  Magnetic resonance imaging (MRI) in September 2002 demonstrated chronic L4-5 discopathy with disc bulging, mild canal stenosis and bilateral foraminal stenosis with possible impingement of the right L4 nerve.  In November 2002 the CI complained of numbness and tingling over “top” of his right foot. A neurosurgeon recommended an epidural injection, which the CI did not desire. Evaluation in January 2003 noted range of motion (ROM) measurements of flexion 70 degrees and extension 10 degrees.  Treatment consisted of ibuprofen, a nonsteroidal anti-inflammatory drug (NSAID) and methylprednisolone (a steroid).  Because of bilateral foot paresthesias, the CI underwent electrodiagnostic studies in June 2003, which demonstrated subtle changes in the tibialis anterior and lateral gastrocnemius consistent with an L5 radiculopathy manifesting as numbness on the lateral aspect of the right foot.  MRI study in August 2003 revealed evidence of minimal disk desiccation and degeneration at L4-5 with a mild protrusion.  At a neurosurgical evaluation in October 2003 the CI reported right lower extremity numbness and tingling with low back pain, worse with prolonged standing, sitting, and walking.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “chronic low back pain secondary to degenerated disk at L4-5 with mild disk protrusion” and “right lower extremity numbness and tingling secondary to disk protrusion at L4-5” for PEB adjudication.  

The MEB NARSUM examination on 23 October 2003, 7 months prior to separation, noted complaints of severe pain in the lower back, which worsened with prolonged periods of standing, sitting, bending, walking and lifting.  The CI also reported numbness and tingling in his lower extremities, which interfered with his ability to continue working as a truck driver.  Several therapeutic modalities had no long term benefit to the CI.  The physical examination showed mild tenderness and a normal gait.  The examiner noted an EMG (electromyogram) study that was positive for right L5 radiculopathy and that the CI continued to have difficulties performing activities of daily living.  

A note dated 1 October 2004, 4 months after separation, indicated the CI “got peri-radicular block,” but still had persistent pain.  At a rehabilitation clinic appointment on 14 March 2005, 9 months after separation, the CI reported lower back pain, which was constant, stabbing and shooting in nature.  Any forward bending would aggravate the pain, and he took Vicodin (hydrocodone, a narcotic and APAP (acetaminophen), a pain reliever) for pain relief.  The examiner opined that the CI denied any radicular pain to his lower extremities and recorded limited ROM secondary to pain and increased pain with spine extension.  He also noted mild tenderness to palpation (TTP) and a negative straight leg test (rule out disk herniation).  

At the 29 June 2005 VA Compensation and Pension (C&P) evaluation, performed 13 months after separation, the CI reported  constant pain traveling up his back and described it as sharp and aching.  The CI rated his pain level at 9/10, which was relieved with rest and medication.  The physical examination showed no radiating pain on movement and no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement.  There was some tenderness to palpation and painful motion, but no muscle spasms and no ankylosis.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10%, coded 5243-5237 (intervertebral disc syndrome-lumbosacral strain), citing tenderness and a flexion limited to 75 degrees.  The VA rated the chronic low back pain condition 20% coded 5295 (lumbosacral strain), based on the VA C&P examination 13 months after separation, citing moderate spasm and a flexion of 50 degrees.  

The Board 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 the combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  Board members took note of the VA examinations 17 months pre-separation and 13 months post-separation respectively.  However, Board members discussed the probative value of the both remote VA examinations, neither of each was as proximate to separation as was the NARSUM examination.  Furthermore, while flexion improved from the earlier VA examination to the NARSUM examination, there was no explanation how or why the flexion ROM decreased post separation.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. 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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  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 low back pain condition.  

BOARD FINDINGS:  In the matter of the chronic low back pain 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 20141028, 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

07 MAR 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170002592 (PD201500293)

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