RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2012-00151
BRANCH OF SERVICE:  Army	BOARD DATE:  20150714
SEPARATION DATE:  20040630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for chronic low back pain (LBP).  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  “L4 to S1 degenerative disc disease (DDD),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (atypical spell secondary to multiple narcotic medications for pain) for PEB adjudication.  The Informal PEB adjudicated “chronic back pain due to lumbar DDD” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the 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/Naval 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 confined to review of medical records and all available evidence for application of the 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:  

IPEB - Dated 20040510 | VA* - (3 Days Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain Due to Lumbar DDD | 5299-5237 | 10% | DDD, Lumbosacral Spine | 5243 | 20% | 20040627
Other MEB/PEB Conditions x 1 (Not in Scope) | Other x 11
RATING:  10% | RATING:  30%
*Derived from VA Rating Decision (VARD) dated 20050328 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Lumbar Spine.  The service treatment record reflected that in early 2001 the hatch of a Bradley fighting vehicle came down striking the CI on the head which resulted in residual conditions to include acute LBP progressing to chronic back pain with radiculopathy symptoms into both lower extremities. The CI’s specific treatment for the low back condition remained non-surgical to include physical therapy (PT) and local injections.  A magnetic resonance image conducted in August 2003 revealed bi-level disc bulging in the lumbosacral (L/S) spine.  Absent additional trauma, the intensity of his back pain increased with further complaints of leg weakness with occasional bowel and bladder dysfunction.  Orthopedics diagnosed the CI with DDD of the L/S spine.  Despite multiple treatment interventions, his LBP continued.  He was permanently profiled in January 2004 and referred to a MEB.  At the narrative summary examination, 8 April 2004 (2 months prior to separation), the CI reported LBP “to the point where he cannot do what he needs to for [MOS] or deploy.”  His physical examination (PE) was brief and revealed decreased and painful thoracolumbar range-of-motion (ROM).  Motor, sensory, and reflex testing of the lower extremities were intact.  His American Medical Association pain rating scale was assessed as “moderate” and “constant.”  The diagnosis remained unchanged.  The commander’s statement specifically noted that the CI was not physically able to do any duties within his MOS.  

At the VA Compensation and Pension (C&P) examination, 27 July 2004 (a month after separation), the CI reported a chronic and constant dull LBP associated with numbness extending down both lower extremities and both feet; all made worse by prolonged sitting or standing.  The VA PE was normal with regard to gait, posture, thoracolumbar ROM, and neurologic assessment.  The goniometric ROM evaluations 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)

PT ~2 Mo. Pre-Sep

VA C&P ~1 Mo. Post Sep

Flexion (90 Normal) | (35) 30/35/35 | 45
Extension (30) | (10) 10/10/10 | 15
R Lat Flexion (30) | (25) 25/25/25 | 30
L Lat Flexion (30) | (25) 25/25/25 | 30
R Rotation (30) | (30) 35/40/40 | 30 (45)
L Rotation (30) | (30) 35/35/40 | 30 (45)
Combined (240) | 155 (175) | 180
Comment | painful motion | -
§4.71a Rating | 20% | 20%

The Board directed its attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5237 (lumbosacral strain) citing limited combined ROM for 10% by the PEB and code 5243 (Intervertebral disc syndrome) citing limited forward flexion and pain for 20% by the VA.  Board members first agreed that sufficient evidence of painful motion was present within 2 months prior to separation to justify the PEB’s rating of 10%.  Board members then acknowledged and agreed that the single component of thoracolumbar flexion clearly supported a 20% VASRD impairment rating in both (prior to and after) separation examinations.  The Board additionally considered if the reported lower extremity radicular symptoms warranted an additional disability rating; but, all members agreed that the requisite link of any neuropathy symptoms with functional impairment were not in evidence.  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 condition. 

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20% coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION | VASRD CODE | RATING
Lumbar Spine; Degenerative Disc Disease | 5243 | 20%
RATING | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140815, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013690 (PD201200151)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization 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:

Encl		XXXXXXXXXXXXXXX
			Deputy Assistant Secretary of the Army
			(Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2012-00151