RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201050
BRANCH OF SERVICE:  army	BOARD DATE:  20130423
SEPARATION DATE:  20020924

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC /E-3 (95B/Military Police) medically separated for chronic low back pain (LBP).  The CI experienced LBP following a 2001 injury and experienced radicular pain to the left lower extremity (LLE).  Conservative treatment consisting of physical therapy, rest, light duty and anti-inflammatory pain medication only gave him temporary relief.  After referral to Physical Medicine and Rehabilitation (PM&R) it was determined that the CI was not a surgical candidate.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “chronic back pain, degenerative disc disease (DDD) and radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated chronic LBP as unfitting, rated 10%.  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “Problem has gotten worse.  VA has shown through various MRI’s that the problem is severe and worsening.”

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.  Ratings for unfitting conditions will be reviewed in all cases.  The rated, unfitting chronic LBP condition meets the criteria prescribed in DoDI 6040.44 for Board purview.  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 the Board for Correction of Military Records.

RATING COMPARISON:  

Service Admin IPEB – Dated 20020607	VA -  (7 Mos. Post-Separation)    	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5293	10%	Herniated Nucleus Pulpous, L4-L5	5293-5292	10%*	20030417	
No Additional MEB/PEB Entries	Other x 0	20030417	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20021210(most proximate to date of separation (DOS)
*Increased to 40% and radiculopathy added for 10% effective 20030113 (VARD 20030429); combined 50% rating

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Chronic Low Back Pain With Radicular Pain.  The 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards on 26 September 2003, and were identical to the interim VASRD standards used by the VA in its rating decision.  The ratings prior to 26 September 2003 were based on a judgment as to whether the disability was mild, moderate or severe.  The current standards are grounded in range-of-motion (ROM) measurements.  IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation (i.e. prior to 2004 standards).

The service treatment record (STR) indicates that in 2001 the CI’s first episode of LBP occurred after lifting a duffle bag.  Although symptoms resolved with conservative therapy, they soon recurred without a known traumatic precursor.  Although quarters were assigned on two occasions during the year prior to separation, the STR did not document any incapacitating episodes.  At an outpatient exam on 5 December 2001 the CI complained of chronic, recurrent LBP since May 2001.  Over the previous few months he reported gradual worsening, and was now experiencing severe lumbar pain.  Exam noted tenderness and moderate paraspinal spasm in the lumbar area.  Straight leg raise (SLR) was positive, but lower extremity muscle strength was normal.  Heel-toe gait elicited pain.  At an emergency room visit on 16 December 2001 (9 months prior to separation) the CI reported that he had experienced no symptoms for the previous 5 months.  He currently complained that symptoms began again that morning while getting out of bed.  At a physical medicine exam on 9 January 2002 the CI complained of LBP with radiation to the left thigh and occasionally to the calf.  He rated his pain as 8-9/10 (1-10 scale) and his therapy included a narcotic analgesic.  There were no bladder or bowel changes.  The examiner noted pain over the left sacroiliac joint and lumbosacral paraspinal muscles; tight hamstrings; and, some break away weakness due to subjective pain.  Movement was observed to be guarded due to pain.  Lower extremity strength and sensation were normal.  Lumbar flexion was 30 degrees (90 degrees is normal by current standards) and extension 20 degrees (30 degrees normal).  A physical exam in February 2002 noted tenderness at L5-S1 and decreased ROM secondary to pain.  Lower extremity reflexes were normal.  At the narrative summary (NARSUM) exam in March 2002 (6 months prior to separation), the CI reported a constant low level of pain which was tolerable, except when exacerbated by activities such as driving his car, prolonged standing or walking, or strenuous activities involving lower back muscle use.  He described radiating pain down the left leg and paresthesia in the left foot.  Physical examination noted a positive SLR, but right or left side was not specified.  Strength and sensation were normal.  Flexion of the “back” was “reduced.”  A separate undated note by the examiner cited a magnetic resonance imaging (MRI) study which reportedly showed protrusion of the nucleus pulposus and slight anterior deplacement of the left S1 nerve root.  At the VA Compensation and Pension (C&P) exam in April 2003 (7 months after separation) the CI reported he injured his back in a parachute jump.  Although he complained that “any attempt at bending and lifting cause severe pain and this restricts his activities,” he was employed and was able to perform activities of daily living.  Pain radiated to the left leg.  The examiner noted no weakness, atrophy, or gait abnormality.  SLR was positive bilaterally.  ROM testing revealed flexion of 30 degrees, right and left lateral flexion of 25 degrees and extension of zero degrees.  X-rays of the lumbosacral spine (April 2003) were normal, including normal intervertebral disc spaces.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5293 (intervertebral disc syndrome) required evidence of “incapacitating episodes.”  The VA initially assigned a 10% rating under code 5293-5292 (limitation of motion, lumbar spine) for “slight” limitation of motion of the lumbar spine; but once results of the C&P exam were available, this rating was increased to 40% based on limitation of motion.  Under the PEB’s 5293 code, the Board agreed there was no evidence to support the next higher 20% rating.  Likewise, under the 5295 code (lumbosacral strain), examinations did not report the next higher 20% criteria (“muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position”).  Under the 5292 code used by the VA, “severe” limitation of motion justifies a 40% rating, while “moderate” limitation justifies a 20% rating.  Board members agreed that the evidence just described is most accurately depicted by the “moderate” descriptor.  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 LBP condition, coded 5292.  The Board further deliberated if additional disability was justified for the history of left lower extremity radiculopathy, for which the VA assigned a 10% rating.  The CI complained of intermittent left lower extremity radiating pain.  MRI showed slight displacement of the S1 nerve root.  All examiners recorded normal neurologic findings, including muscle strength.  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.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that this condition could not be recommended for additional disability rating.

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 chronic LBP with radicular pain condition, the Board unanimously recommends a disability rating of 20%, coded 5292 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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain with Radicular Pain	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120627, 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 AR20130009542 (PD201201050)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA