RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02292
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040224

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

CI CONTENTION:  The CI submitted a lengthy contention which included his unfitting low back condition as well as two additional 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 - 20031125	VARD - 20040524	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbosacral DDD with Spondylosis 	5243	10%	2003219	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of chronic back pain that was exacerbated by a vehicular accident in June 2001.  Afterwards he suffered persistent pain with intermittent bilateral radicular symptoms.  Imaging (MRI) demonstrated degenerative disc disease (T9/10 and T11/12 without neural impingement, and a “small” bulge at L5/S1 with mild right S1 nerve root encroachment).  Electrodiagnostic testing (EMG) demonstrated a “mild right S1 radiculopathy without evidence of acute denervation [no permanent nerve damage].”  There were multiple neurological examinations evidenced in STR clinical entries.  All demonstrated normal (5/5) motor strength and intact reflexes, but there was sporadic note of right distal sensory deficits in earlier entries.  There was STR documentation of grossly normal range of motion (ROM), albeit with painful motion, but there were earlier entries that noted non-specifically decreased flexion.  The CI responded favorably to a series of injections (facet blocks), and all subsequent STR entries documented normal ROM and normal sensory findings.  There was STR documentation of normal gait and normal spinal contour with no contrary evidence, and there was no documentation of incapacitating episodes.  It was opined that surgery was not indicated, and the favorable response to treatment was not sufficient to allow unrestricted duty. The CI was referred for a MEB.  The MEB forwarded “chronic low back pain secondary to degenerative disc disease” to the PEB.  

The 29 July 2003 NARSUM examination, 7 months before separation, the CI reported “constant” non-radiating back pain rated 6/10 exacerbated to 10/10 by “lifting, rucking, running, or running upstairs.”  The physical examination recorded a normal gait, tenderness, and normal neurologic findings.  Measured ROM for the MEB by physical therapy on the same day as the NARSUM was flexion to 90 degrees (normal) with a combined ROM of 240 degrees (normal), without comment regarding painful motion.  

At the 19 December 2003 VA Compensation and Pension (C&P) examination, 9 weeks before separation, the CI reported non-radiating back pain that “does not interfere with ordinary lifting or carrying, posture or gait.”  The physical examination recorded a normal gait and spinal curvature, no spasm, and normal neurologic findings (5/5 strength, intact sensory, symmetric reflexes).  Measured ROM was normal in all planes, and specified the absence of painful motion or ROM degradation with repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain, analogously coded 5299-5237 (thoracolumbar strain), citing the VASRD §4.71a 10% criterion of tenderness, and was compliant with VASRD §4.71a criteria for the service evidence.  The VA rated the back pain, coded 5243 (intervertebral disc syndrome) based on the C&P examination 9 weeks before separation, citing no rationale for its minimum compensable rating of 10% (no 10% criteria in the C&P evidence).  There was no ROM evidence supporting a rating higher than 10%; no evidence for abnormal gait or spinal contour to support a 20% rating, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  

The Board also considered if additional service 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 nerve involvement, this is subsumed under the §4.71a general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The earlier sensory findings were of no functional import; there was no evidence for objective motor weakness; and, the evidence most proximate to separation (NARSUM and C&P) did not indicate that any radiculopathy was still present.  There was thus no evidence for peripheral nerve involvement that would have logically impacted military occupation-specific activities; and, the Board concluded that additional service 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 of the lumbar disc condition.  

BOARD FINDINGS:  In the matter of the lumbar spine 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 20150826, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170004232, XXXXXXXXXXXXXXXXXX 

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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