RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201158
BRANCH OF SERVICE:  Army	BOARD DATE:  20130327
SEPARATION DATE:  20020117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (91B10/Nuclear Medicine Specialist) medically separated for low back pain (LBP).  In 2000, he experienced an onset of LBP with no traumatic event precipitating the symptoms.  He was subsequently diagnosed with non-surgical LBP which did not improve adequately treatment 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).  No other conditions were submitted by the MEB.  Lower discogenic back pain secondary to large disc protrusion at L3-4 and L4-5 with nerve root compromise at the L4 level was forwarded to the Physical Evaluation Board (PEB).  The PEB adjudicated the LBP as unfitting, rated 10%.  The CI made no appeals, and was medically separated with that disability rating.

CI CONTENTION:  “Back has gotten proessively [sic] worse.  One surgery already in 2008, 2012 mri looking real bad again.”

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.  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 rating for the unfitting LBP condition is addressed below; and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 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, operating under a different set of laws.

RATING COMPARISON:  

Service IPEB – Dated 20011019	VA -  (3 Mos. Post-Separation)    	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5293	10%	Low Back Pain	5292	20%	20020425	
No Additional MEB/PEB Entries	Other x 1	
Combined:  10%	Combined:  20%	
Ratings derived from VARD dated 20020710, most proximate to date of separation.

ANALYSIS SUMMARY:  

Low Back Pain Condition.  The narrative summary (NARSUM) notes the CI had a history of LBP with intermittent radiation that began in August 2000 without a traumatic incident.  Magnetic resonance imaging (MRI) performed 5 October 2000 revealed a large central disc herniation with a free disc fragment that compromised the right L4 root.  A surgical consultation was obtained December 1999, but the CI’s pain had improved with no radicular symptoms for a month prior to the evaluation.  On exam there was painful lumbar flexion; no motor or sensory deficits; straight leg raise (SLR) was negative.  Surgery was not recommended because there had been improvement and conservative measures had not been exhausted; it was noted that a change in symptoms might warrant surgical intervention.  At the MEB narrative summary (NARSUM) exam 22 August 2001, approximately 5 months prior to separation, the CI reported constant back pain worsened by lifting or squatting.  He reported intermittent radicular symptoms down his legs that resolved with rest.  The MEB NARSUM physical exam noted tenderness to palpation of the lower back.  Reflexes, motor, sensation and gait were normal.  SLR, seated or contralateral, was negative.  Range-of-motion (ROM) was not specifically addressed.  On the MEB DD Form 2807 dated 29 June 2001, approximately 6 months prior to separation, the CI reported recurrent back pain and numbness and tingling in his legs with running, jumping or heavy lifting.  The MEB DD Form 2808 examination of the same date noted decreased “ROM with toe touch, SLR B positive, TTP lumbar region.”  At the VA Compensation and Pension (C&P) exam 25 April 2002, approximately 3 months after separation, the CI reported intermittent LBP without radiation that was aggravated by sitting, standing, walking two blocks, going up or down stairs, or lifting more than 15 pounds.  At the VA exam the CI had a mild limp to the right, though posture was reported to be normal.  There was no tenderness to palpation of the lumbar spine or sciatic notch; no evidence of muscle spasm.  Motor was 5/5 bilaterally with normal reflexes.  SLR was reported positive bilaterally but noted not to cause any spasm or leg pain.  ROM was described as the CI “is 20 inches from toe touching.”  Forward flexion was 40 degrees (normal 90 degrees); extension 20 degrees (normal 30 degrees); lateral flexion 20 degrees bilaterally (normal 30 degrees).  All motion was painful.  Mildly decreased sensation was noted bilaterally, consistent with an L4 dermatomal distribution.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition as 5293 (intervertebral disc syndrome) at 10%.  The VA rated “low back pain” as 5292 (limited lumbar motion) at 20%.  The Board must apply the VASRD rating criteria in effect on the date of the CI’s separation and the Board did so.  The Board deliberated coding as 5293 or 5292.  The CI’s LBP condition, as evidenced by lumbar MRI, was due to a large disc herniation with L4 nerve root irritation.  At the time of separation, the CI had localized back pain with intermittent radiation of pain and numbness into his legs as long as he restricted his physical activities.  There were no fixed sensory, motor, or reflex abnormalities.  At the C&P exam the CI reported no radicular symptoms since March 2001 (approximately 9 months prior to separation).  Therefore, the Board opined the CI’s disability due to his LBP condition at the time of separation met the 10% rating of 5293, but not the higher 20% rating.  The Board deliberated whether a higher rating of 20% was achievable coding as 5292 based on limited ROM.  The MEB NARSUM did not address ROM.  However, the MEB DD Form 2808 indicated decreased lumbar flexion.  At the C&P exam, the closest exam to separation at approximately 3 months post separation, lumbar flexion was described as “20 inches from toe touching” and alternatively as “forward flexion of 40 degrees,” as well as pain with all back motions.  Therefore, the Board opined that the CI’s disability picture at the time of separation most nearly met the 20% rating coded as 5292, based on moderate limitation of lumbar motion.  There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  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 LBP condition coded as 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.  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, 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	
Low Back Pain Condition	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120606, 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 AR20130009084 (PD201201158)

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