RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01463
BRANCH OF SERVICE:  Army	BOARD DATE:  20140801
SEPARATION DATE:  20041223

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty SGT/E-5 (11B, Infantryman) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “Chronic Low Back Pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501; and no other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeal and was medically separated.

CI CONTENTION:  “It was for my wrist that I got 10% but Medical Discharge for my lower back.”

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.  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 20041026	VA - No C&P available	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Disc Disease of Lumbar Spine	5242	0%*	Not Available	
No Additional Conditions in Scope	No Other VA Conditions in Scope	
Combined:  10%	Combined:  20%	
* VA Rating Decision (VARD) dated 20081105 increased back condition from 0% to 10%.

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

Low Back Condition.  After injuring his back during basic training in 1997, the CI experienced intermittent LBP which did not cause functional impairment.  However, in 2003 the condition worsened and did not respond sufficiently to profile restrictions, medications, physical therapy or chiropractic care.  Magnetic resonance imaging in June 2004 was normal except for minimal L4-5 disc disease.  There was no associated surgical indication.

The MEB separation exam (DD Form 2808) on 1 July 2004 (6 months prior to separation) noted lumbar spine tenderness, but was silent regarding gait or spinal contour.  Lumbar flexion was 55 degrees (normal 90 degrees), extension 15 degrees (normal 30 degrees), right and left flexion 30 degrees (normal 30 degrees) and right and left rotation 30 degrees (normal 30 degrees).  Combined range-of-motion was 190 degrees.  Painful motion was present.  The narrative summary examiner, on 8 September 2004, reported that the CI experienced pain with walking, and had trouble sleeping or standing for longer than 10 minutes.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5242 code (degenerative arthritis of the spine).  The VA also used the 5242 code, but the examination upon which an initial 0% rating was based is not in evidence.  The Board majority agreed that the only examination available reported lumbar flexion that justified a 20% rating, but no higher (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees).  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  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 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, the Board by a majority vote recommends a disability rating of 20%, coded 5299-5242 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	
Chronic Back Pain	5299-5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, 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, AR20150002607 (PD201301463)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA