RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201071
BRANCH OF SERVICE:  Army	BOARD DATE:  20130430
SEPARATION DATE:  20030405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Supply Clerk) medically separated for low back pain (LBP) that began while working in a warehouse in 1999.  Despite physical therapy and epidural injections his back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “low back pain with disk protrusion at L5 to S1” 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 and rated 10%, referencing Department of Defense Instruction (DoDI) 1332.39.  The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION:  “Not able to work because of chronic lower back pain, have had a spinal fusion which did not give any relief and have limitations physically.  Also have pain radiating down the back of left leg.”  

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 low back condition is addressed below and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 respective Service Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (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.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  
   
Service IPEB – Dated 20030212	VA - Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain 	5299-5295	10%	Low Back Pain w/Disc Bulge L3-L4 and L4-L5	5293-5292	20%	STR	
No Additional MEB/PEB Entries	Other x 2	STR	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030417 and 20030624 

ANALYSIS SUMMARY:

Chronic Low Back 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.

The condition began after getting off a forklift.  Although the CI had been doing heavy lifting, there was no history of specific injury or trauma.  The service treatment record (STR) indicated persistent LBP without radiation.  A magnetic resonance imaging (MRI) study in December 2002, showed a small, central disc protrusion at L5-S1 and slight effacement of the anterior thecal sac (membrane around spinal cord); spinal cord or neural foraminal narrowing were absent.  Surgery was not recommended.  ROM in evidence is provided in the following table:

Thoracolumbar ROM
(Degrees)	Ortho ~3 Mo. Pre-Sep	NARSUM ~ 2.5 Mo. Pre-Sep	Sep. Exam  ~ 2 Mo. Pre-Sep	
Flexion (90 Normal)	“Within 6 in. of floor”	45	45	
Extension (30)	20	15	10	
R Lat Flexion (30)	20	(30) 35	(30) 35	
L Lat Flexion (30)	20	(30) 35	(30) 35	
R Rotation (30)	Not reported	Not reported	Not reported	
L Rotation (30)				
Comment	Paraspinal tenderness	+Pain with movement, paraspinal tenderness		
§4.71a Rating	10%	10% or 20%	10% or 20%	

At the MEB exam, the CI reported daily dull pain around the L5 area, without pain, weakness, numbness, or tingling in the lower extremities.  He rated the pain as 5/10 (1-10 scale) which increased to 9/10 with activity.  Treatment included daily anti-inflammatory and narcotic pain medications.  The examiner noted tenderness in the paraspinal muscles at L5.  Lower extremity strength and patellar and ankle reflexes were normal.  Although he used a cane at the exam, he could heel and toe walk without difficulty.  The profile restricted lifting to 20 pounds.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB cited “characteristic pain on motion” in assigning a 10% rating under an analogous 5295 code (lumbosacral strain).  Under a combination 5293 (intervertebral disc syndrome) and 5292 (spine, limitation of motion of, lumbar) code, the VA assigned a 20% rating for limitation of motion based on the STR.  Board members agreed that evidence of muscle spasm and loss of lateral spine motion was lacking, and therefore the next higher 20% rating was not justified under the 5295 code; and further noted that there was no evidence of “incapacitating episodes” that would justify a minimal rating under the 5293 code.  Under the 5292 code (spine, limitation of motion of, lumbar) a 20% rating is supported for “moderate” limitation of motion.  During deliberation it was discussed that objective evidence outside the three exams reflected in the chart above could readily support a 10% rating.  A Board majority agreed that the “moderate” descriptor most accurately the clinical condition, and therefore a rating of 20% was justified.  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.

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic LBP condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  The single voter for dissent (who recommended no change in the PEB adjudication) did not submit an addended minority opinion.  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	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201211, 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 AR20130010379 (PD201201071)

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