RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01764
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050511

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

CI CONTENTION:  The CI contends his condition continues to worsen and affect his daily activities.  He also requests consideration of 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 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 - 20050324	VARD - 20060729	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5299-5237	10%	Mild Central Disc Protrusion	5243	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Subjective Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in February 2003 with insidious onset.  Magnetic resonance imaging (MRI) studies in June 2004 showed “mild central disc protrusion at L5-S1.”  After numerous conservative treatment modalities (physical therapy, chiropractic, treatment w/TENS unit, and epidural steroid injections) the CI continued to endorse low back pain.  

On 24 November 2004, the CI sought treatment at the emergency room (ER) for increased back pain over a week-long period.  The examiner noted positive tenderness to palpation (TTP) of the lower L5-S1 region of the spine.  The CI had a negative straight leg raise (SLR) for radicular symptoms.  The examiner provide medication (Lortab) and placed the CI on quarters for 24 hours.  The diagnosis was “acute chronic LBP.”  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic uncomplicated low back pain” for PEB adjudication.  

The MEB NARSUM examination on 13 December 2004, 5 months prior to separation, noted complaints of persistent and chronic back which had not been alleviated by conservative treatment.  He stated pain was exacerbated by “prolonged standing, prolonged sitting, exertional in nature, etc…”  The CI had one emergency room (ER) visit and 1 day of missed work within the past 12 months.  

Physical examination showed a normal gait and spinal contour with no paraspinal muscle spasm, or tenderness.  Active range of motion (ROM) was flexion to 55 degrees (normal 90), and combined 160 degrees (normal 240).  Strength, reflexes, and sensory testing were normal.  Provocative maneuvers for radicular signs were negative.  The CI reported pain with axial loading and simulated rotation (examination maneuvers not expected to elicit pain based on the known pathology).  Physical therapy formal ROMs accomplished the same day were as noted in the NARSUM and indicated painful motion.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 15 February 2005, 3 months prior to separation, the CI reported “a disc protrusion in his lower back caused pain and tingling in his back and legs.”  Numbness in feet was aggravated by speed walking or running.  He also reported the pain and tingling caused his legs to give way.  Physical exam showed negative SLR bilaterally with normal strength and reflexes.  The CI was non-attendant to his scheduled VA C&P examination.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded 5299-5237 (lumbosacral strain), citing range of motion limited by pain with likely application of the US Army Physical Disability Board (USAPDA) pain policy.  The VA rated the low back pain condition 0%, coded 5243 (intervertebral disc syndrome), based on STR’s and failure to report for the scheduled VA examination; indicating a non-compensable evaluation was granted.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the NARSUM and PT examinations.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain 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 objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  The evidence showed the CI had IVDS (disc disease causing back pain and sciatica) and experienced incapacitating episodes due to acute signs and symptoms that required treatment and bed rest prescribed by a physician.  According to review of the STR, the total duration of incapacitation over the 12 months prior to separation did not result in a higher rating than any rating based on limitation of motion.  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 low back pain condition, coded 5299-5237.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board recommends a disability rating of 20%, coded 5299-5237 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	
Chronic Subjective Low Back Pain	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005174, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure