RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01949
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040710

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 “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  The CI's complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20040603	VARD - 20050610	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	10%	Lumbosacral Strain	5237	10%	20041208	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in December 2002 after lifting a heavy generator.  Radiographic (X-ray) studies in August 2003 was negative for fracture and bony abnormality.  Magnetic resonance imaging (MRI) studies were negative.  An electrodiagnostic (EMG) study in March 2004 showed a left S1 lumbar radiculopathy.  There was no surgical indication and 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 an MEB.  The MEB forwarded “slight, occasional, chronic low back pain with radiculopathy of the left leg” for PEB adjudication.  

At the 13 November 2003 primary care clinic appointment, the CI reported constant back pain that was controlled through medication.  Physical examination showed no radicular symptoms, no tenderness, full range of motion (ROM), and negative straight leg raise test for radiculopathy.  

During the 4 March 2004 MEB examination (recorded on DD Forms 2807 and 2808), 4 months prior to separation, the CI reported recurrent back pain with numbness and tingling down the left leg, and trouble sleeping due to chronic pain from back injury.  Physical examination showed that the CI was able to bend at the waist, touched his toes easily, and had a negative straight leg raise bilaterally.  

The 14 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant lower back pain that got worse at times and was aggravated by certain exercises, such as climbing stairs or walking fast.  The CI also reported pain to his mid-left thigh and numbness and tingling down the left leg as far as the big toe.  Physical examination showed negative straight leg raising test for radiculopathy, tender lumbar muscles bilaterally with mild spasms on the left, and slight decreased light touch sensation along the L5-S1 area.  ROM measurements were performed by Physical Therapy (PT) on 11 March 2004 which showed a flexion of over 90 degrees (normal 90), and a combined ROM of 190 degrees (normal 240).  

At the 8 December 2004 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported constant back pain that traveled to his left leg.  While in pain, the CI could function with medication.  Physical examination showed normal posture and gait, normal lower extremities sensory and strength testing.  There was radiation of pain on movement, muscle spasm, tenderness at L4, and negative straight leg raise test bilaterally.  ROM measurements showed a flexion of 80 degrees and a combined ROM of 175 degrees with no change on repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 10%, coded 5237 (lumbosacral strain), citing ROM limited by pain with localized tenderness.  The panel 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 combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB NARSUM and VA examinations.  Although there was muscle spasm, it was not severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Electrodiagnostic studies supported some level of left S1 radicular nerve irritation or involvement, but physical examinations (physical medicine, PT, 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 panel’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 panel 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain condition.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

AR20170015657 , XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR)
reviewed your application and found your separation disability rating and your
separation from the Army for disability with severance pay to be accurate. I have
reviewed the Board’s recommendation and record of proceedings (copy enclosed), and
I accept its recommendation. I regret to inform you that your application to the DoD
PDBR is denied.
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.
Sincerely,

Enclosure