RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02238
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050505

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Intelligence Analyst, medically separated for “chronic low back pain (LBP)” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  The 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 - 20041104	VARD - 20050420	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disk Disease of the Lumbar Spine	5242	20%	20041216	
Left Leg Radiculitis	MEB Dx - Included w/ LBP					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain condition began in March 2003 after cramping during sit-ups and collapsing after a 2-mile run.  Magnetic resonance imaging (MRI) on 14 August 2003, showed transitional vertebrae and central mild herniation at L5-L6.  A previous MRI demonstrated spondylosis and degenerative disk changes in the lumbar spine.  At the time of a neurosurgery appointment on 8 December 2003, the CI declined spinal fusion surgery for his spondylosis and degenerative disease in favor of non-surgical management and an MEB.  The MEB forwarded “degenerative disc disease (DDD) manifested by herniated nucleus pulposa (HNP) at the L5/6 disc, associated with recurrent lower back pain & reduced range of motion” and “left leg radiculitis secondary to diagnosis #1” for PEB adjudication.  

At the time of a physical therapy referral appointment on 14 April 2004 the CI complained of numbness and tingling of his left lower extremity depending on activity, with 6-7/10 left leg pain.  Examination documented lumbar tenderness and painful motion with forward flexion of 50%.  Muscle strength, sensation, and reflexes were symmetric and normal.  There was positive SLR (provocative testing for radicular signs) on the left, with mixed results on iliopsoas muscle testing (positive Thomas and negative FABER sign).  

At the time of a physical therapy clinic appointment on 26 May 2004, the CI reported no improvement with pain 4/10 to 7-8/10 at end-of-day.  His symptoms increased with mechanical therapy and pain increased throughout the day.  On examination, there was minimal increased lumbar lordosis, rounded shoulders, and no tenderness to palpation (TTP).  Manual muscle testing was 4/5 (weakness) on the left lower extremity.  There was positive SLR on the left and a positive FABER sign.  Bilateral hamstrings were moderately tight.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated September 2004, 8 months prior to separation, the CI reported recurrent back and leg pain.  Physical examination showed decreased range of motion (ROM) of the thoracolumbar spine, with tenderness and spasm.  

The MEB NARSUM examination on 7 October 2004, 6 months prior to separation, noted complaints of elimination of many life activities and assumption of a very sedentary life; but he can swim up to 10 minutes and walk up to ½ mile.  Physical examination showed an antalgic gait, straight spines with mild lumbar spasms and tenderness in the paraspinal muscles and mildly in the gluteals.  There were no trigger points with radiation.  Tinel’s signs (for nerve irritation) were negative.  Manual muscle testing was 5/5 (normal) in all muscle groups tested and the CI could heel and toe walk.  Reflexes were 2+ (normal) throughout, and sensation was intact.  ROM was limited as recorded in the chart.  

At the 16 December 2004 VA Compensation and Pension (C&P) evaluation, performed 5 months before separation, the CI reported back and left leg pain with the development of a limp and numbness down his entire left leg.  The CI reported an ability to walk 2 miles and perform the activities of daily living, but could not engage in vigorous physical activity.  Physical exam showed an abnormal gait.  There were mild paraspinous muscle spasms without tenderness.  The CI stated that “his sensation throughout his entire left leg is diminished compared to the right.  This cannot be objectively confirmed or denied.”  Lower extremity reflexes and strength were normal and the CI could walk on his heels and toes and tandem walk.  SLR was negative.  ROM was limited as recorded in the chart.  

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~7 Mos. Pre-Sep	VA ~5 Mos. Pre-Sep	
Flexion (90 Normal)	55 	40	
Combined (240)	195	100	
Comments	Painful motion; tender; spasm; antalgic gait	Painful motion; spasm; abnormal gait	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the lumbar DDD and left leg radiculitis conditions as a single unfitting condition coded 5237 (lumbosacral strain) and rated 10%; citing degenerative disk disease with tenderness and spasm on palpation, painful and reduced forward flexion (80 degrees) and antalgic gait.  The PEB description including “muscle testing 5/5 non-focal” was adjudged as an implied PEB finding of “not unfitting” for the left leg radiculitis condition which will be addressed below under contended conditions.  There was likely application of AR 635-40 as the PEB-cited forward flexion was from passive ROM testing and not active ROM (55 degrees).  The VA rated the “degenerative disk disease of the lumbar spine” condition 20%, coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 5 months before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine no greater than 120 degrees.  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) and/or spasm with abnormal gait reported on the MEB NARSUM and VA C&P examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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 chronic low back pain condition, coded 5237  

Contended PEB Conditions:  Left Leg Radiculitis.  The Board’s main charge is to assess the fairness of the PEB’s implied determination that the left leg radiculitis condition was not unfitting.  While there were recurrent episodes of pain and numbness in the left leg, there were no objective focal neurologic deficits noted on the examinations proximate to separation.  The left leg radiculitis condition was judged to fail retention standards, but was not profiled or implicated in the commander’s statement.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria (see rating above), 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, the Board concluded that there was insufficient cause to recommend a change in the PEB’s implied fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left leg radiculitis condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 Low Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150819, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005401, 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