RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01283
BRANCH OF SERVICE:  Army	BOARD DATE:  20140729
SEPARATION DATE:  20040826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M20/Motor Transport Operator), with over 21 years of total service, who was medically separated for chronic low back pain.  The CI initially injured her low back pain in 1997 while lifting furniture and was diagnosed with mechanical low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain,” was the sole condition forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AR 40-501.  The Informal PEB adjudicated her “chronic low back pain due to degenerative disc disease, without neurologic abnormality, combined thoracolumbar range of motion 195 degrees” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “My lower back and knee has worsened and yet my rate stayed the same, you did not address my broken nose.  My left side of my lower back is worse and now I am having trouble with my left hip and it has been like this for 4 months, VA will not address it until my appt, 19 Sep 13. My hip hurts me so bad that it is a struggle to stand, get out of bed, and walk.  I was sent to physical therapy at BVA in Pensacola, Fl in July 2013.  The therapist suggest I see the orthopedics.  I have an appointment with the Dr…. on 19 Sep 13 just to inquire on this matter and who knows when I will see the orthopedics.  I was told by Phy. Ther. that I may need a hip replacement.  Tell me why I have to wait til appointments are available months later.  The pain medication they are giving does not work and the response from the Doctor was, I need to see her before they give me any other medicines.” 

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 back condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested knee, nose, left and right hip conditions were not identified by the PEB or the MEB and thus are not 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040609	VA - 2 Mos. Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Due to Degenerative Disc Disease, w/out Neurologic Abnormality	5299-5242	10%	Degenerative Joint Disease, Lumbar Spine*	5242	10%	20040607	
Combined:  10%	Combined:  30%	
*Derived from VA Rating Decision (VARD) dated 20040826 (most proximate to date of separation).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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.  

Chronic Low Back Pain.  Review of the service treatment record (STR) reveals that the CI was well until early January 1997, when she first experienced low back pain subsequent to moving office furniture.  The STR documents periodic clinic visits for back pain, multiple physical therapy evaluations/treatment plans and recurrent duty restrictions, until a permanent L2 profile for low back pain was first documented in October 1998 and again in October 2001 with limitations to ruck marching.  During this period, the CI was evaluated by rheumatology, to rule out any connective tissue disease, such as rheumatoid arthritis.  Consultation with physical medicine in 2001 revealed intermittent left lumbar pain (8/10), without radiation into the lower extremities, exacerbated by prolonged standing and running and minimally improved with physical therapy, chiropracty, back class or medications.  At this consultation, examination revealed a negative straight leg raise (SLR) test (which, if positive, indicates possible nerve compression) and a full range-of-motion (ROM) of the back, with normal sensory and motor function in the lower extremities, which was diagnosed as “chronic mechanical low back pain.”  In February 2004 (6 months prior to separation), the CI reported worsening pain (7/10) despite medication (pain relievers and muscle relaxers), worse with prolonged sitting and noting nonspecific parasthesias (numbness or tingling) in the lower extremities.  At this occasion, examination revealed normal posture, gait, and ROM with a non-tender spine, but with left sciatic notch (buttock) tenderness.  Since the CI had intermittently reported the radiation of pain into the left leg, a neurosurgery consult was obtained (5 months prior to separation), which reported a negative SLR test, normal strength, normal sensation, normal spinal ROM, normal reflexes, but an “antalgic gait” (limping).  Radiologic imaging in February 2004 (6 months prior to separation) indicated lumbar spondylosis (degeneration) and degenerative arthritic changes, with mild disc bulging but without nerve compression, which, along with a normal electromyogram (EMG).  A permanent profile (5 months prior to separation) documented numerous duty and activity restrictions, including the fitness test (APFT), noted worsening of the condition over the previous 6 months and recommended MEB.  The commander’s statement to the MEB (4 months prior to separation) noted the numerous duty restrictions caused by this condition and recommended that the CI “be considered unfit.”  At the MEB exam (6 months prior to separation), the CI reported back pain, with leg pain, worse with sitting, driving, standing longer than ten minutes or walking greater than one mile.  The narrative summary (NARSUM) for the MEB (4 months prior to separation), of which the fourth and last page was missing from the evidence provided to this Board, reported a history of low back pain for 7 years, intermittently “improved with therapy,” with permanent profile since 1998, but worse in the previous “6-12 months.”  The NARSUM noted that surgery for the condition had been considered, but that a conservative approach had been chosen.  Upon physical examination for the MEB, the NARSUM noted a normal “heel/toe” walk, “minimal tenderness to palpation along the lumbar sacral spine” and tenderness at the left sacroiliac joint.  SLR test was negative bilaterally and deep tendon reflexes (DTRs) in both legs were normal.  The MEB (3 months prior to separation) forwarded to the PEB the diagnosis of chronic low back pain.  The PEB (2 months prior to separation) adjudicated, as unfitting, the CI’s “chronic low back pain due to degenerative disc disease without neurologic abnormality,” with a combined thoracolumbar ROM of 195 degrees.

At the VA Compensation and Pension (C&P) examination (2 months prior to separation), the CI reported intermittent “aching” left low back pain (8/10) without radiation, exacerbated by physical activity and without a history of incapacitating episodes.  The examiner recorded that the CI admitted to “no impairment resulting from the spine injury.”  At this occasion, physical examination revealed a normal appearance of the spine, normal posture and normal gait without use of assist devices.  Mild spasm of the paralumbar muscles was noted bilaterally.  Neurological examination revealed normal sensory and motor function and a negative SLR test.  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)	MEB ~ 5 Mo. Pre-Sep
(20040309) 	VA C&P ~ 2 Mo. Pre-Sep
(20040607) 	
Flexion (90 Normal)	90	90	
Extension (30)	15	30	
R Lat Flexion (30)	26	30	
L Lat Flexion (30)	22	30	
R Rotation (30)	25	30	
L Rotation (30)	20	30	
Combined (240)	198	240	
Comment	Minimal TTP LS spine and left SI joint. DTRs normal. SLR negative.	No pain on flexion & extension. ROM is not limited by pain, fatigue, weakness, coordination, or lack of endurance. Gait and spinal contour normal.	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation and notes that the current §4.71a rating standards were incorporated prior to her separation.  The PEB, having found the condition to be unfitting and in the absence of neurological abnormality, rated the condition at 10% under VASRD code 5299-5242 (IAW §4.20), analogous to degenerative arthritis of the spine.  The VA Rating Decision (VARD), dated 2 months after separation, also rated the condition at 10% under VASRD code 5242, rating not due to limited ROM; but citing “muscle spasm” and “localized tenderness not resulting in abnormal gait or abnormal spine contour.”  The Board examined if a higher rating could be obtained under the VASRD General Rating Formula for Disease and Injuries of the Spine, but noted that the ROMs measured by both the MEB and the VA C&P were not limited sufficiently to qualify for higher rating under this formula.  Additionally, there was no evidence for incapacitating episodes, abnormal gait or abnormal spinal contour that would support a higher rating.  Given that the thoracolumbar ROM was not additionally limited by pain, weakness, fatigue coordination or lack of endurance, there are no §4.71a criteria for higher rating in evidence.  Noting that radiation of pain, in the absence of radiculopathy (nerve involvement), is subsumed under the spinal rating formula, the Board did consider if any radicular component in this case warranted additional disability rating under peripheral nerve coding; however, the Board members agreed that there was no objective evidence for either sensory or motor radiculopathy and that no requisite link with functional impairment was in evidence.  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 thoracolumbar spine 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 low 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			
	           XXXXXXXXXXXXXXXXX
	           President
	           Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20150002626 (PD201301283)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA