RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02047
BRANCH OF SERVICE:  Army	BOARD DATE:  20150227
SEPARATION DATE:  20050624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantryman) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or meet physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain with degenerative disk disease and disk protrusion at L4-5” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic subjective low back pain” 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 and mid back deteriorated and it limit my options for jobs.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20050520	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5241	10%	Degenerative Disc Disease L4-5; S/P L4 Laminectomy; L5 Discectomy, Lumbar Spine	5243	20%	20050819	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060118 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Chronic Subjective Low Back Pain.  The CI initially injured his back in November 2001 while performing heavy lifting, and experienced subsequent episodes of self-limited LBP.  He suffered significant re-injuries in May 2003 from a hard parachute landing and in March 2004 while running.  Back pain was associated with left lower extremity numbness and intermittent radiating pain.  Evaluation discovered a small wedge compression fracture of L1 as well as degenerative disc disease and disc herniation at L4-5 on the left.  On 17 June 2004 the CI underwent an L4-5 fusion procedure but continued to experience problematic LBP.

At the narrative summary evaluation on 25 April 2005 (2 months prior to separation) the CI reported there was no back pain if he was completely relaxed, but he experienced pain with usual daily activities.  Exacerbating factors included prolonged standing, walking, running and jumping.  He could walk a mile and climb three flights of stairs.  He was using narcotic medication for pain.  Examination showed midline lumbar spine tenderness, but no paraspinal muscle tenderness.  Gait, spinal contour and muscle spasm were not mentioned.  Lower extremity muscle strength was normal.

At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported back pain that radiated to the left thigh.  He could walk more than a quarter mile but less than a mile.  His condition prevented participation in sports.  Although incapacitating episodes reportedly occurred, the number of such episodes was not given.  The condition reportedly had no significant effects on his occupation as a civilian contractor for the military that involved operating virtually simulated battle situations (i.e. “works behind a computer all day”).  Examination showed no evidence of muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour.  Lower extremity muscle strength was normal.  Painful flexion and extension was noted to be present (as reflected in the table below) but onset of pain was at the extremes of motion.  After two repetitive movements, flexion was reported to be reduced to 20 degrees due to pain.  The examiner opined that the limitation of motion noted on examination did not represent “normal” for the CI.

The goniometric range-of-motion 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/MEB ~2 Mos. Pre-Sep	VA C&P ~2 Mos. Post-Sep	
Flexion (90 Normal)	40	40*	
Combined (240)	190	170	
Comment	+Painful motion	+Painful motion	
§4.71a Rating	20%	20% or 40%** (VA 20%)	
                                   *Flexion after two repetitions = 20 degrees
		   **40% conceding application of VASRD §4.45

The Board directed its attention to a rating recommendation based on the above evidence.  The PEB’s 10% rating was assigned under the 5241 code (spinal fusion) while the VA rated the condition at 20% using the 5243 code (intervertebral disc syndrome).  The Board agreed that both of the examinations reported lumbar flexion that justified a 20% rating for forward flexion greater than 30 degrees but not greater than 60 degrees.  However, the application of VASRD §4.45 was debated, which allows for a higher rating if evidence of additional functional loss is present.  In this case, the C&P examiner noted additional loss of flexion (after repetitive motion) to 20 degrees, and Board members debated if this warranted a 40% rating (for forward flexion of 30 degrees or less).  The Board majority concluded that the application of §4.45, which the VA declined to invoke, was not supported by the evidence in this case.  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.  The Board further deliberated if additional disability was justified for the history of left lower extremity radiculopathy.  The CI experienced radiating pain and intermittent left lower extremity numbness.  However, examiners recorded normal muscle strength.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concludes that additional disability was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% 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 subjective LBP condition, the Board by a majority vote recommends a disability rating of 20%, coded 5241 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:

CONDITION	VASRD CODE	RATING	
Chronic Subjective Low Back Pain 	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150011178 (PD201302047)

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			     XXXXXXXXXXXXXXX
				     Deputy Assistant Secretary of the Army
				         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA