RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00820
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050613

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Counterintelligence Agent, medically separated for “low back pain” with a disability rating of 0%.  

CI CONTENTION:  The CI requests that all conditions be considered.  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 - 20050524	VARD - 20051107	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic…Low Back Pain…	5299-5237	0%	DDD, Lumbar Spine	5243	0%	20050805	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in November 2004 during basic training, with no specific injury or trauma identified.  Radiographic studies performed in January 2005 revealed multi-level degenerative changes of the lower back, worse at the L4-5 level.  Evaluation by orthopedics concluded with a diagnosis of left L4 radiculopathy and recommended non-surgical treatment.  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 “lumbosacral degenerative disc disease” for PEB adjudication.  

During the MEB examination (recorded on DD Forms 2807 and 2808) dated 4 May 2005, 1 month prior to separation, the examiner reported ROM as flexion at 90 degrees and combined ROM at 215 degrees.  At the physical therapy appointment 5 days later (11 May 2005) the CI reported low back pain and left thigh numbness, with back pain reported at 0/10 severity at rest (though the left thigh numbness persisted at rest) and 4/10 back pain (with left thigh burning) with activities such as running, load bearing activities, marching or jumping.  On examination, gait was within normal limits and neurological functions were normal.  The low back was tender to examination by touch, but hypertonicity (or spasm) was not present.  ROM was measured as flexion at 90 degrees (90 is normal) with combined ROM at 230 degrees (normal 240). Provocative tests for nerve root impingement were negative for radiculopathy, as was provocative testing for sacroiliac (SI) joint pathology.  There was minor discomfort with testing for altered neuro dynamics or neural tissue sensitivity (slump test).  The MEB NARSUM examination on 24 May 2005, 1 month prior to separation, noted normal gait and neurologic function.  Provocative maneuvers for nerve root impingement were negative for radiculopathy, but provocative testing for SI joint pathology was positive.  

At the 5 August 2005 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported that his condition had improved to where he characterized it as low back “tightness” and some lingering left thigh numbness.  The CI rated his low back discomfort at 4/10 severity, with flare-ups caused by excessive standing.  During flare-ups the CI would limit walking, lifting, and standing.  He did not routinely limit weight lifting or bearing due to the condition, though, and could occasionally play at least nine holes of golf, for which he carried his golf bag.  The physical examination showed a normal gait and neurologic examination, a mild increase in the normal curvature of the spine, but no spasm.  ROM was measured at 90 degrees flexion and 240 degrees combined ROM.  Radiographic studies were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 0%, coded 5299-5237 (analogous to lumbosacral strain), citing full motion and no tenderness.  The VA also rated the back at 0%, but used the 5243 VASRD code (intervertebral disc syndrome), based on the VA C&P examination 2 months after separation, citing an absence of tenderness and pain, and no loss of range of motion.  The Board agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the physical therapy and MEB examinations, as well as tenderness reported at the physical therapy 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.  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).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back pain, coded 5237.  

BOARD FINDINGS:  In the matter of the low back pain, the Board unanimously recommends a disability rating of 10%, coded 5237 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	
Low Back Pain	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150605, 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, AR20170001040 (PD201500820)

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 10% 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