RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201759
BRANCH OF SERVICE:  ARMY	BOARD DATE:  20130424
SEPARATION DATE:  20011113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty SGT/E-5 (71L20/Administrative Specialist), medically separated for chronic low back pain (LBP), with history of a L1/2 decompressive laminectomy and a bilateral L2 foraminotomy condition.  The CI had a history of LBP since sustaining an injury during unit physical training.  The chronic LBP 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 referred for a Medical Evaluation Board (MEB).  The chronic LBP, due to multiple factors to include a disk at L1-2 and failed back facet syndrome vs mechanical LBP condition, was determined not to meet retention standards and forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, Chap 3.41.e.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic LBP, with history of L1/2 decompressive laminectomy and bilateral L2 foraminotomy condition, as unfitting and rated it at 10%.  The CI made no appeals and was medically separated with a 10% combined disability rating.

CI CONTENTION:  “MORE PROBLEMS WITH BACK, STRONG SPASMS, WEAKNESS OF BACK.  SEE ENCLOSED LETTER” sic The CI attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.

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 chronic LBP, with history of L1-2 decompressive laminectomy and L2 bilateral foraminotomy condition is addressed below; 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.

RATING COMPARISON:  

Service IPEB – Dated 20010716	VA -  (5 Mos. Post-Separation)    	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP, with History of L1-2 Decompressive Laminectomy and L2
Bilateral Foraminotomy	5292	10%	Herniated Disc and DJD/
Spondylolysis with Bilateral Radiculopathy Status Post
Laminectomy	5293	40%	20020510	
No Additional MEB/PEB Entries	0% x 1/NSC x 4	20020510	
Combined:  10%	Combined:  40%	
VARD 20020807 (most proximate to Date of Separation)

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  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 nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule of Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic Low Back Pain, with History of L1/2 Decompressive Laminectomy and L2 Bilateral Foraminotomy Condition.  The chronic LBP, which started in September 1999 after physical fitness training, was not relieved with conservative treatment including analgesics, muscle relaxants, and physical restriction.  An X-ray of the lumbar spine performed, on 5 October 1999, revealed “mild” retrolisthesis (displacement of the vertebral body) at L3-4 and L4-S1 region and “possible” spondylolysis (a defect in the connection between vertebrae) at L5-S1.  The radiologist noted that the findings were “probably long standing and not related to the recent trauma.”  The disc spaces were “well maintained.”  Magnetic resonance imaging (MRI) on 
3 November 1999 revealed “diffuse spondylosis with multilevel broad based bulges with canal narrowing due to disc bulge and spondylotic changes.”  The CI was evaluated and treated by physical medicine and referred to physical therapy (PT).  The patient was evaluated by a neurosurgeon on 21 July 2000 and surgery was recommended.  The patient underwent decompressive laminectomy (L1-2) and bilateral foraminotomy (L2), on 12 September 2000.  On follow-up with the neurosurgeon, the CI reported continued pain with frequent spasms; however, the numbness in his leg had resolved.  An MRI performed on 9 February 2001, 
9 months prior to separation, to assess the continued complaints of severe back spasms, revealed no evidence of recurrent herniated nucleus pulposus (HNP); multilevel disc desiccation was noted, consistent with degenerative disc disease (DDD), but without impingement of the spinal canal or foramina.  The patient continued with rehabilitation; however, he continued to report episodes of severe back pain.  On 24 April 2001, the CI was issued a permanent L3 profile and a MEB initiated.

The MEB narrative summary (NARSUM), 28 March 2001, over 7 months prior to separation, reported that the CI complained of 5-10 out of 10 back pains with radiation to the anterior surface of his legs, periodically with pins and needles in both feet.  The pain occurred with prolonged standing or sitting and was worse at the end of the day.  The examiner reported that the CI denied any weakness or sensation loss.  The CI also denied any bowel or bladder incontinence.  The CI had no limitations on weight bearing tolerance and was able to complete activities of daily living.  He was also able to walk without limitation.  The CI was not able to carry a rucksack, use Kevlar, wear load bearing equipment (LBE) or flak vest, or participate in other physical activities.  The CI was 71 inches tall and weighed 189 pounds.  The examination revealed tenderness to palpation over the scar area of the patient’s surgery.  The range-of-motion (ROM) examination was reduced in flexion, extension and lateral bending; the CI reported he was having a good day.  The examiner reported negative bilateral straight leg raises (SLR).  The CI’s motor strength was normal (5/5), his sensation to light touch and pinprick was normal, and his deep tendon reflexes were normal and symmetric.  It noted that the commander had determined that the CI was not world-wide deployable.  The prognosis for civilian employment was thought to be good.  No incapacitation was documented.

The CI was evaluated on 19 February 2002, 3 months after separation, by a pain management specialist.  At that time, the CI reported that he continued to have back pain which radiated to his groin and hips and burning sensation in the top of his legs and behind his knees.  The CI reported that he had not had PT since that following surgery.  He reported that he was still taking multiple medications, but he only took them on the weekend because they made him drowsy.  The CI also noted some urinary incontinence with severe pain.  No incapacitation was reported.  The CI was working as a store detective, which involved prolonged sitting.  The examiner’s report indicated that X-ray examination performed, on 22 January 2002, demonstrated a laminectomy defect at L1-2 with subluxation of L1-2.  An MRI on that same day revealed the same with “a mild disc bulge” and L2-3 disc protrusion with ventral compression on the thecal sac and some foraminal narrowing.  The examination demonstrated paraspinal muscle tenderness, trigger points, negative SLR, normal sensation, and normal reflexes.  Neither spasm nor atrophy was documented.  The impression of the examiner was “lumbar radiculopathy” presumably based on the subjective complaints.

The VA Compensation and Pension (C&P) examination of the spine, 10 May 2002, 6 months after separation, indicated that the CI reported continued back pain (8 out of 10) with radiating pain from his waist down both of legs (L>R) and numbness behind his knees.  The CI said that he was having pain at least five times a day, often precipitated by prolonged sitting or standing.  He also reported having severe muscle spasms that caused bowel and bladder incontinence.  His pain was alleviated by walking.  Incapacitation was not reported.  The examiner reported point tenderness in the left paraspinal area.  The ROM examination was slightly reduced in flexion.  There was pain with SLR at 60 degrees bilaterally.  Distal tendon reflexes were normal.  There was no muscle atrophy; posture and gait were both normal.  Heel to toe walking was performed without complaints.  There was no atrophy.

The Board directed its attention to the rating recommendation based on the above evidence.  The PEB adjudged the chronic LBP condition (without supporting evidence of radiculopathy) as slight and assigned a 10% disability, coded 5292 (limitation of motion of the spine).  The VA coded the chronic LBP condition using the VASRD code for intervertebral disc syndrome, 5293 and assigned a 40% disability rating for severe, recurring attacks with intermittent relief.  The Board correlated the above clinical data with the 2001 VA rating schedule for rating disabilities of the spine (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 Lumbosacral strain).  The Board, initially, considered the rating under the VASRD diagnostic code 5292 in effect at the time.  The Board agreed that the evidence supported slight limitation of motion, consistent with the 10% rating for code 5292.  The Board next considered the rating under the code, 5295, lumbosacral strain, but concluded the preponderance of evidence did not support a rating higher that the 10% rating assigned by the PEB.  The Board then considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293.  The Board agreed that, although there was evidence of subjective symptoms of radiculopathy, the absence of objective neurologic findings did not support the 60% rating under the 5293 diagnostic code.  The Board also agreed that there was no evidence to support incapacitation or impaired occupational functioning that supported the severe or moderate ratings.  The Board agreed that the evidence support mild back pain.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the chronic 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 chronic 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	
Chronic Low Back Pain Condition	5292	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120918, 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 AR20130010303 (PD201201759)

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