RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201839
BRANCH OF SERVICE:  Army	BOARD DATE:  20130430
SEPARATION DATE:  20040604

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (74D20/Nuclear Biological Specialist) medically separated for a low back condition.  The CI started having a gradual onset of low back pain (LBP) since 2001.  He was treated with anti-inflammatory and profiles of mostly no push-ups or sit-ups.  He was sent to Iraq and lifted a one ton generator.  The LBP worsened, at that time, it was associated with numbness to the right thigh.  The low back 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 low back condition characterized as degenerative disc disease (DDD), lumbar spine with chronic LBP was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as medically unacceptable.  No other conditions were submitted by the MEB.  The PEB adjudicated the low back condition as unfitting rated 10% with likely application of Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION:  “Since being discharged in June of 2000 I have attempted many different jobs however I am not able to keep a job, due to the pain in my back.  I will miss more days than the allotted amount of time in just a short period of time.  I can no longer sit or stand for any period of time.  Sometimes I can barely bend over to tie my shoes or shave.  I now have to use a can to get around of the nerve damage my legs will go out.  We have had to move into a 1 level house because my legs will give out and i will fall going up or down stairs.  I've seen many doctors in the VA and am not a candidate for surgery because of the high risk.  I have been told that my condition is degenerative and will only get worse.  My PTSD causes me to have to avoid in crowded, loud or hot areas.  I went into the Army to make a career, and my dream was cut short, now I will never have the ability, physically or mentally, to have the life I had prior to my injury.”

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, the contended posttraumatic stress disorder (PTSD) condition is not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contentions 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.  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.

RATING COMPARISON:  

Service IPEB – Dated 20040312	VA  (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5299-5237	10%	Herniated Disc L-4.-L5 and L5-S1, Chronic Lower Lumbar
Spine Strain	5243	20%*	20040812	
			Radiculopathy, Right Lower Extremity	8520	10%	20050617	
			Radiculopathy, Left Lower Extremity	8520	10%	20050617	
No Additional MEB/PEB Entries	Other x 2	20040812	
Combined:  10%	Combined w BLF:  60%	
Derived from VA Rating Decision (VARD) dated 20041102 (most proximate to date of separation [DOS]).
*Ratings increased later to 40% from 20100223. 

ANALYSIS SUMMARY:  

Low Back Condition.  The CI had had atraumatic back pain for 2 years prior to aggravating it with lifting a one ton generator while deployed to Iraq in May 2003.  He was evaluated and treated by orthopedics, neurosurgery and physical therapy for a magnetic resonance imaging (MRI) confirmed two level herniated disc disease without spinal stenosis or nerve root compromise.  The neurosurgeon notes were not in evidence to review; however, the narrative summary (NARSUM) examiner cited the neurosurgeon counseled the CI that the surgical risks were too high and to continue conservative care.  The permanent profile identified the condition as a herniated disc with limitations to include no lifting greater than 20 pounds, walk and run at own pace and distance and able to only complete the walk event for physical fitness testing.  The commander’s statement corroborated that the condition limited him in his duties and physical fitness, and further documented the CI was unable to pull, push, bend, run and lift without making his back condition worse, was unable to wear load bearing equipment, and was still working in his MOS within his limitations.

At the MEB exam, the CI reported constant, slight pain which awoke him at night, worsened with prolonged sitting or standing, and bending or heavy lifting.  He reported numbness of the right leg and that he took the non-steroidal anti-inflammatory medication (Motrin).  The MEB physical exam demonstrated no back tenderness, no signs of disc disease, normal neuromuscular findings of the lower extremities, and the ability to walk on heels and toes.  An MRI of the lumbosacral spine, on November 2003, revealed a broad-based disc bulge at L4-5 with narrowing of the right foramen without compression which was in contact with right L4 nerve root without compromise, and a central disc herniation at L5-S1 which caused some ventral flattening of the thecal sac but no spinal stenosis or nerve root compromise.  At the VA Compensation and Pension (C&P) exam, 2 months post-separation, the CI additionally reported a pain intensity of 5 of 10 which increased to 8 of 10 with excessive bending.  The back pain was aggravated with squatting, kneeling, climbing, stooping, and with repetitive use.  He reported radiating back pain to the right leg, no flare-ups, no incapacitating episodes, and no interference with daily activities or current employment.  The C&P exam demonstrated a normal gait and posture, stiffness but not spasm, and positive bilateral straight leg testing (provocative sign for disc disease).

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	
PT ~4 Mos. Pre-Sep	Ortho ~4 Mos. Pre-Sep	MEB ~3 Mos. Pre-Sep	VA C&P ~2 Mos. Post-Sep	
Flexion (90 Normal)	FAROM	“Flexion to toes”	95	0-50	
Extension (30)	FAROM	20	35	0-30	
R Lat Flexion (30)	FAROM	“flexes to knee crease” 	20	0-30	
L Lat Flexion (30)	FAROM	“flexes to knee crease”	25	0-30	
R Rotation (30)	FAROM	#	70	0-30	
L Rotation (30)	FAROM	#	70	0-30	
Combined (240)		##	300	200	
Comment	Painful motion	Silent to painful motion	Silent to pain	Without pain	
§4.71a Rating	10%*	10%	10%	20%	
*Conceding §4.59

The Board directs attention to its rating recommendation based on the above evidence.  There is a disparity of the flexion ROM values between the MEB and the VA examinations, with some implications regarding the Board's rating recommendation.  The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation.  In assigning probative value, the Board notes that the MEB measurements are consistent with the diagnostic and clinical pathology in evidence; consistent with the flexion ROM documented in other orthopedic and physical therapy exams, and the VA exam performed 2 months later may account for progression of disease as there was no further injury or surgery in evidence for worsening disease.  Therefore, based on all evidence and associated conclusions just elaborated, the Board is assigning more probative value to the MEB evaluation.  The PEB and VA chose different coding options for the low back condition which had significant implications on the rating for the Board to consider.  The PEB assigned a 10% rating coded analogous to 5237 (lumbosacral strain) for limited combined ROM of 300 degrees which is consistent with the VASRD general rating formula for diseases and injuries of the spine.  The PEB specifically cited there were no associated objective neurologic abnormalities for a separate rating under an appropriate diagnostic code.  The VA assigned a 20% rating coded 5243 (Intervertebral Disc Syndrome) for limited flexion for their exam which is also IAW the general rating formula for diseases and injuries of the spine.  The VA additionally assigned a 10% rating for radiculopathy for each leg for objective sensory deficits.  The Board agreed that the VA chosen code is more representative of the clinical pathology related to the CI’s condition and considered higher rating under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  The Board invoked the VASRD definition for incapacitating episodes which requires “bed rest prescribed by a physician and treatment by a physician.”  There is no such evidence to support a higher rating under this formula.  The Board considered additional rating for peripheral nerve involvement.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The radicular component in evidence in this case consisted primarily of pain, which is subsumed under the general spine rating formula.  There is no objective evidence for functional impairment related to the subjective sensory symptoms of the right thigh.  Therefore, there is no evidence of ratable peripheral nerve impairment to justify additional rating.  The Board, therefore, does not find reasonable doubt favoring a recommendation for an additional rating.  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 low back 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 low back 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 re-characterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Subjective Low Back Pain	5299-5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121016, 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 AR20130010800 (PD201201839)

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