RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02036
BRANCH OF SERVICE:  Army	BOARD DATE:  20140918
SEPARATION DATE:  20050605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42L20/Administrative Specialist) medically separated for chronic lower back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent P2/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB characterized the condition as “chronic low back pain, L L5 radiculopathy” and forwarded it to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other condition was submitted by the MEB.  The PEB adjudicated “chronic low back pain” as unfitting, rated at 10% citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am in constant pain for my spinal injury and the impact from my injury has made it difficult to function and my ability to perform normal activities are limited.  Being medically separated from the military was not my mission my life has been tremendously turned upside down and I should have been retired with full benefits. I serve in the US Army Reserves and then AD.  Thank you so much for your time and consideration on this matter.” [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 chronic low back pain 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 20050225	VA – (1.5 Mos. post-separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	DDD Lumbar Spine with Chronic Strain	5243	40%	20050719	
Other x 0 (Not in Scope)	Other x 11	20050713	
Combined:  10%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20070414 (most proximate VARD in evidence 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 Condition.  The CI developed lower back pain in 2003 while deployed to Iraq.  Initial evaluations in August and September 2003, the CI reported the onset of pain occurred while doing sit-ups.  In June 2004 the CI was admitted, 3 days to a civilian hospital in Germany, for lower back pain.  The CI lower back pain was conservatively treated with physical therapy, [steroid] injections and pain medication, but her pain was not resolved.  Lumbar X-ray images were normal, while a magnetic resonance imaging showed a small L4-5 disc herniation.

The narrative summary (NARSUM) evaluation on 3 December 2004 (6 months prior to separation) the CI reported that her pain was constant and located in the left and right lower lumbar regions; there was also occasional radiation of pain to the left thigh.  The CI stated that her pain was worsened by vigorous activities, carrying heavy loads, bending, running, lifting, performing sit-ups and cold weather.  During examination, the examiner noted lumbar paraspinal tenderness, but comments regarding muscle spasm, spinal contour or gait were omitted.  Lower extremity muscle strength was normal.  The examiner’s diagnosis was chronic low back pain with left L5 radiculopathy.

The range-of-motion (ROM) evaluation dated 7 December 2004, documented an average number after three repetitions; individual repeated measures were not provided.  During the MEB examination dated 14 December 2004, the CI reported difficulty sleeping due to back pain that rated into her left leg and foot.  The physical exam noted thoracic and lumbar tenderness.  ROM was reported to be decreased, but was not objectively measured.

The VA Compensation and Pension (C&P) examination dated 19 July 2005 (6 weeks after separation), the CI reported chronic lower back pain that radiated to the left lower extremity.  Physical exam noted a slow, slightly antalgic gait; no ambulatory aid was used.  The CI was able to undress herself, but declined to squat because of back pain.  There was no tenderness noted but comments of [muscle] spasms and spinal contour were omitted.  Although pain did not increase during ROM testing, repetitive motion was not attempted due to complaints of pain.  The examiner characterized the lumbar ROM as “manifested by lack of effort” and noted that the CI demonstrated “excessive pain behaviors.”  Two signs of non-physiologic pain (contradictory straight leg raise testing and give-away hip weakness) were present.  Although mild give-way weakness of the left lower extremity was reported, a neurologic C&P examination the following day reported a normal gait and no extremity weakness.

The 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)	Clinic ~8.5 Mos. Pre-Sep	PT (for MEB)
 ~6 Mos. Pre-Sep	VA C&P ~6 Wks. Post-Sep	
Flexion (90 Normal)	45	45*	30	
Extension (30)	“Full”	15 (13)*	10	
R Lat Flexion (30)		15 (14)*	Not Reported	
L Lat Flexion (30)		15 (13)*		
R Rotation (30)	Not Reported	30 (60)		
L Rotation (30)		30 (60)		
Combined (240)	NA	150	N/A	
Comment	+Painful motion, tenderness; normal gait		+Painful motion	
§4.71a Rating	20%	20%	40%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), the VA, also using the same code, rated the condition at 40%.  Although the PEB cited combined ROM as the rationale for a 10% rating (combined ROM greater than 120 degrees but not greater than 225 degrees), the flexion of 45 degrees noted by two different service examiners justified a 20% rating (flexion greater than 30 degrees but not greater than 60 degrees).  Based on the C&P examiner’s finding of 30 degrees of flexion, the VA’s 40% rating was supported.  The probative value of these evaluations was deliberated and the entire file carefully reviewed for corroborating evidence from the period preceding separation.  

The C&P examiner’s observations, such as “excessive pain behaviors” and findings suggestive of an element of non-physiologic pain, caused Board members to question the reliability of those ROM findings.  The Board concluded that the NARSUM’s ROM data was more consistent with the diagnostic and clinical pathology in evidence prior to separation and thus was assigned preponderant probative value.  It was agreed that the limitation of flexion from the MEB’s physical exam justifies a 20% rating.  All members agreed that a higher rating could likewise not be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. 

Finally, the Board considered if the left lower extremity radiculopathy warranted additional disability rating.  The pain component of a radiculopathy is subsumed under the General Spine Rating as specified in §4.71a.  Members agreed that the requisite link of radiculopathy with functional impairment was not in evidence.  Therefore, the Board cannot support a recommendation for an additional disability rating on this basis.  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 low 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 low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243, 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 her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131024, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
		XXXXXXXXXXXXXXXXX
			President
			Physical Disability Board of Review

AMR-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, AR20150006478 (PD201302036)

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