RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201583
BRANCH OF SERVICE:  Army	BOARD DATE:  20130403
SEPARATION DATE:  20020618

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (96R/Ground Surveillance Systems Operator) medically separated for low back and left leg pain.  In 1996, he reported having sharp, non-radiating intermittent back pain in the left L3 area.  He was treated with non-steroidal anti-inflammatory drugs (NSAIDs), heat, and physical therapy and was seen at orthopedics, which identified disk herniation in the L4-L5 area.  Neurosurgery indicated surgery would not likely cause much improvement.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and duty limitations and referred for a Medical Evaluation Board (MEB).  The disk, back and leg conditions, characterized as “L4-L5 disk herniation,” “Lower back pain” and “Left leg pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated “chronic pain, low back and left leg due to L4-5 herniated nucleus pulposus” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy, noting that this decision was based on all three MEB conditions.  The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION:  “After 10 years my condition has gotten worse.  I cannot keep a job for long because I cannot sit or stand for long periods of time.”  [sic]    

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 and left leg pain 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 Army 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 Veteran 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 20020225	VA - (4 Mos. Pre/Post-Separation))	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Low Back and Left Leg due to L4-5 Herniated Nucleus Pulposus, without Significant Neurologic Abnormality	5293	10%	Herniated Disc L4-L5 with Left Leg Pain	5293	20%	20021019	
No Additional MEB/PEB Entries	Other x 0	20021019	
Combined:  10%	Combined:  20#%	

ANALYSIS SUMMARY:   

Low Back and Left Leg Pain.  The CI‘s history revealed he developed non-traumatic intermittent back pain in 1996.  Since that time, he developed left leg pain.  He was treated conservatively with unsustained improvement.  August 2000 orthopedic consult recorded left lower extremity numbness associated with activities and constant pain in addition to low back pain (LBP) intermittently.  On examination there were tenderness to palpation of the knee with full range-of-motion (ROM), and normal muscle strength.  Treatment records indicated no objective findings of knee locking, instability, effusions, gait disturbance, or limitation in ROM.  Examination of the lumbar spine revealed tenderness and decrease in sensation around L4-S1 region, reported as mild.  The physician assessed radiculopathy secondary to bulged or herniated disk.  Approximately a year prior to separation, an orthopedic examination of the spine recorded pain on straight leg raise (SLR) and sensory deficits L1-S1.  Although the CI reported back spasms and radicular symptoms, there were no objective findings of spasms on examinations, and no incapacitating episodes documented in the treatment record.  Approximately 9 months prior to separation, clinic treatment note recorded lumbar spine with full ROM.  The CI underwent several consultations to include neurosurgery, orthopedic surgery and physical therapy; he was deemed not to be a surgical candidate.  The neurosurgeon indicated the CI’s back pain was not likely to improve with surgery.  On 2 August 2002, less than 2 months after separation, the CI presented to urgent care for back pain and sharp radiating pain to left leg.  Examination revealed a steady gait, he could heel toe walk, normal strength, point tenderness at S1, negative SLR and intact sensation.  Magnetic resonance imaging (MRI) (7 months prior to separation) demonstrated an L4/5 disc herniation, resulting in mild nerve root compression.  On the MEB NARSUM evaluation, 9 November 2001, 8 months prior to separation, the CI reported back pain with intensity of 7 out of 10 when present.  On examination, gait was normal, lumbar region tenderness, sensation was decreased in S1 distribution, strength was normal and he had a positive SLR, connoting likely nerve root irritation.  He had full ROM and was able to heel toe walk.  At the VA Compensation and Pension (C&P) evaluation, 19 October 2002, 4 months after separation, the CI reported intermittent back pain with flare ups occurring about twice a week that radiates to left leg and foot, and occasionally presenting with tingling and numbness.  Since separation he has been working in a job that requires bending, crawling in tight spaces and lifting, and has missed multiple days of work.  On examination there was point tenderness, no postural abnormalities, and no spasms of the lumbar spine.  ROM included forward flexion, 55 degrees, with pain reported on full extent of motion; extension, 10 degrees with pain.  The CI had a normal gait without assistance, he was able to heel toe walk.  Reflexes and motor examinations were normal, and sensory exam was grossly intact.  

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and the VA rated the condition using the 5293 code (intervertebral disc syndrome).  The PEB rated the condition at 10%, citing pain in leg and back was due to herniated disk without significant neurological abnormality.  The VA assigned a rating of 20% based on chronic orthopedic and neurological manifestations.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (Intervertebral disc syndrome), and 5295 (lumbosacral strain).  At the time of VA examination the interim spine rules were in effect and changes were made in the 5293 code.  Under the 5293 code at the time of separation, a 20% rating required recurring attacks involving peripheral nerve impairment.  Although the CI’s sensory examinations demonstrated localized decreased sensation, the records support mild impairment.  Additionally, there was no documented evidence of spasms that would support a higher rating under code 5295.  The Board next considered the 5292 code, limitation of motion and noted the lumbar ROM recorded at the C&P was inconsistent with the full ROM examinations recorded in the treatment records and the NARSUM.  The Board concluded the preponderance of the evidence do not support a rating under the 5292 code.  There is no VARSD sanctioned pathway to a rating higher than the minimal compensable rating under any appropriate code.  The Board opined that the leg pain and back pain condition was an integral part of the back pathology and could not be recommended for additional rating IAW VASRD §4.14 (avoidance of pyramiding).  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 chronic back pain 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 chronic back pain 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	
Chronic Pain, Low Back and Left Leg due to L4-5 Herniated Nucleus Pulposus	5293	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120830, 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 AR20130009592 (PD201201583)

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