RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02139
BRANCH OF SERVICE:  Army	BOARD DATE:  20140617
SEPARATION DATE:  20050829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for chronic low back pain (LBP).  His back condition 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).  Chronic LBP, mild degenerative disc disease (DDD) at L2 and L3, characterized as medically unacceptable, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB forwarded no other conditions to the PEB.  The Informal PEB (IPEB) adjudicated chronic LBP as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 LBP 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.

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.

RATING COMPARISON:

Service IPEB – Dated 20050628	VA* - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	0%	Degenerative Disc Disease of the Lumbar Spine, L2-L3	5243	0%	20060410	
Other x 0 (Not in Scope)	Other x 2	20060410	
Rated:  0%	Combined:  10%	
* Derived from VA Rating Decision (VARD) dated 20060828 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY

Chronic Low Back Pain.  The narrative summary (NARSUM) notes the CI sustained questionable hairline fractures of the back during basic training with back pain exacerbated by active duty in Afghanistan.  He began seeking active medical treatment for the back condition in October 2004.  A magnetic resonance imaging study obtained in December 2004 revealed mild DDD without nerve impingement.  Upon clinical examination on 18 January 2005, spinal range-of-motion (ROM) was full with normal strength and reflexes.  At an examination performed on 26 January 2005 the CI had a normal gait, normal spinal muscle strength and reflexes and was able to flex to within 12 inches of the floor with pain.  A nerve conduction studies obtained on 11 May 2005 revealed no peripheral neuropathy.

At the MEB/NARSUM exam on 16 May 2005, 3 months prior to separation, the CI reported continued back pain with activity and numbness and tingling in both feet.  The MEB physical exam noted tenderness over the lower spine on palpation; no motor weakness was present.  Straight leg raising produced no pain.  No ROM evaluation was performed.  The examiner noted the CI to “not have much pain right now possibly secondary to lidocaine patch (pain control technique) and was presently doing office work.”

At the VA Compensation and Pension exam performed 7 months after separation, the CI reported continued dull back pain without radiation to the legs and feet.  He noted having seen no physicians and taken no medications for the back condition, since separation from the military.  He was independent in his activities of daily living and had lost no time from work as a security guard.  On physical examination posture and gait were normal.  On examination of the spine, there was no evidence of painful motion, spasm, weakness or tenderness.  ROM was 90 degrees flexion (normal).  Motor, sensory and reflex examinations were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back pain condition 0%, code 5443 (degenerative arthritis of the spine) IAW §4.71a.  A higher rating of 10% under this code requires forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees.  The Board unanimously agreed that the evidence in record did not support a compensable rating for the back condition under VASRD ROM criteria.  The Board considered a rating for pain IAW §4.59 but unanimously agreed the preponderance of evidence in record did not support the back condition to rise to the level of 10% rating.  The Board considered a rating under code 5243 (incapacitating episodes/intervertebral disc syndrome).  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  The record documents no incapacitation under this definition in the 12-month period prior to the MEB examination.  The Board agreed that no rating could be recommended under this code.  The Board considered a rating IAW §4.123 (neuritis, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, nerve conduction studies were negative and sensory symptoms had no functional implication.  The Board found no other appropriate codes for consideration.  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 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 back pain condition and IAW VASRD §4.71a and§ 4.31, 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131026, 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, AR20150002609 (PD201302139)

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