RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200889
BRANCH OF SERVICE:  Army	BOARD DATE:  20130514
SEPARATION DATE:  20030508

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (95B/Military Policeman) medically separated for low back pain (LBP).  The CI first injured his back in 2000 when he fell while rappelling in Germany; he again exacerbated the condition in 2001 while shoveling snow.  Conservative treatment was ineffective and surgery was deemed to not be an option.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “degenerative disc disease with HNP at L5-S1” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated “low back pain…” as unfitting and rated 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated with that disability rating.

CI CONTENTION:  “I am able to manage my back pain through a good diet & exercise.  However over the last couple of years the exercising has become more difficult due back pain & soreness.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting LBP is addressed below.  Any conditions or contention not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for future consideration by respective the Service Board for Correction of Military Records.

RATING COMPARISON:

Service PEB – Dated 20030306	VA - (1 Mos Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain with DDD	5299-5295	10%	DDD with HNP	5295	10%	20030403	
Left Sided HF Hearing Loss w/ Tinnitus	Not Unfitting	Tinnitus, Left Ear	6260	10%	20020909	
		Hearing Loss, Left Ear	6100	0%		
White Matter on Brain MRI		Scattered Spots…Brain	8099-8046	0%	STR	
No Additional MEB/PEB Entries	Other x 1		
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030521.   

ANALYSIS SUMMARY:  

Low Back Pain.  The narrative summary (NARSUM) notes the CI experienced a fall from approximately twelve feet and injured his back, resulting in LBP and stiffness with intermittent left leg pain; this injury was exacerbated in December 2001 while shoveling snow.  Lumbar X-rays were normal without evidence of fracture, subluxation, or degenerative changes.  Lumbar magnetic resonance imaging (MRI) 5 January 2002 showed mild to moderate degenerative disc disease (DDD) and a central disc herniation without nerve compression.  The orthopedic surgeon did not recommend surgery and despite 6 months of conservative treatment the CI was unable to return to full duty.  At the MEB exam 30 December 2002, approximately 4 months prior to separation, the CI reported sharp pain on the left side of his low back with occasional numbness and pain down his left leg.  He reported not being able to run or do sit ups without exacerbating his back condition.  The MEB physical exam noted tenderness to palpation of the lumbar muscles with some palpable spasm.  There was full range-of-motion (ROM) of the L-spine noted and the CI was able to touch his toes, albeit with some pain.  There was normal strength, sensation and reflexes of both lower extremities.  The NARSUM noted that a neurological evaluation 9 December 2002, primarily performed for another matter, noted normal muscle strength and reflexes, normal sensation of both lower extremities with the exception of a mild decrease sensation near the left big toe.  The CI’s gait was normal and he was able to heel, toe and tandem walk without difficulty.  At the VA Compensation and Pension (C&P) exam 3 April 2003, approximately a month prior to separation, the CI reported painful motion of his low back with muscle spasm.  The VA exam showed a normal gait and station.  Lumbar ROM was flexion of 90 degrees (Normal).  No painful motion or muscle spasm was noted.  Reflexes were normal and straight leg raise (SLR) was negative bilaterally.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition as 5299-5295 (analogous to lumbosacral strain) at 10% and the VA rated as 5295 (lumbosacral strain) at 10%.  The Board is required to provide a disability rating in accordance with VA rating guidelines in effect at the time of separation and the Board endeavored to fulfill this obligation.  The CI was placed on quarters for a day in January 2002; there was no additional evidence in the record of incapacitating episodes due to the low back.  At the MEB exam, approximately 4 months prior to separation, the CI was noted to have full ROM with some pain and muscle spasm noted.  At the C&P exam, approximately a month prior to separation, the CI was noted to have a normal lumbar spine exam, without painful motion or muscle spasm noted.  The Board agreed that the CI’s LBP condition at permanent separation most nearly met the 10% rating of 5295.  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 for the LBP 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 LBP 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.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain Condition	5299-5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2012, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010951 (PD201200889)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA