RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02149
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150715
SEPARATION DATE:  20051214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Avionic Systems Repairer) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disc disease (DDD) of the lumbar spine…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic low back pain (LBP)…” 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:  The CI contends that his rating should be higher as reflected in his VA rating.  His complete submission is at Exhibit A.

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 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 20050826	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Degenerative Joint Disease, Lumbar Spine	5242	10%	20051207	
			Sciatica, Left Lower Extremity	8620	NSC		
			Sciatica, Right Lower Extremity	8620	NSC		
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 11	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20050701 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Lumbar Spine. The service treatment record revealed that the CI initially developed non-traumatic low back pain (LBP) in early 2003 and had intermittent exacerbations of similar pain and occasional radicular symptoms throughout his military career.  Radiographic evaluation noted lower lumbar degenerative disc disease (DDD) assessed as “minimal.”  His mainstay of treatment remained physical therapy (PT), medications, restrictions, and spinal manipulation.  Despite such therapy, his back symptoms remained.  He was permanently profiled in May 2005 and was referred to a MEB.  At the time of the MEB narrative summary (NARSUM), 2 June 2005; 6 months prior to separation, the CI’s primary complaint was chronic LBP with frequent exacerbations and rare symptoms in his legs.  His physical examination (PE) revealed tenderness about the lumbar spine as well as decreased thoracolumbar range of motion (ROM).  His neurologic examination was normal.  There was no comment in regards to painful motion.   His diagnosis was listed as “DDD of the lumbar spine with chronic pain with occasional disabling exacerbations usually non-radicular.”  

The VA Compensation and Pension (C&P) examination performed on 7 December 2005, a week prior to separation, provided a chronology of the CI’s back condition noting no additional physical complaints.  The PE revealed lumbar spasm and minimally decreased ROM.  His gait was normal.  The examiner’s overall assessment included the following comment:

“At this point in time, {the CI} has a minimal amount of physical impairment, but apparently it was much worse when {the CI} was required to do the activities of a soldier.”

The goniometric 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 ~6 Mo. Pre-Sep
(20050626) 	VA C&P ~1 week  Pre-Sep
(20051207) 	
Flexion (90 Normal)	60 	90	
Extension (30)	25	15	
R Lat Flexion (30)	20	20	
L Lat Flexion (30)	25	20	
R Rotation (30)	50	30	
L Rotation (30)	45	30	
Combined (240)	225	205	
Comment	tenderness	(+) spasm; (+) normal gait	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5237 (lumbosacral strain) and 5242 (degenerative arthritis) respectively; with the PEB citing pain exacerbations with duty performance failures and the VA as limited ROM.  Board members first agreed that the VA examination denoted exclusive probative value in this case due to it being accomplished one week from the date of service separation.  The presence of lumbar spasm, not resulting in an abnormal gait as well as the combined thoracolumbar ROM clearly supported the VASRD 10% impairment level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.

The Board additionally considered if the occasional symptomatic lower extremity radiculopathy symptoms warranted additional Service disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence in this case.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy type symptom or condition could not be recommended for an additional disability rating.

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 low back 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 20131023, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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 XXXXXXXXXXXXXXXXXXXX, AR20150015860 (PD201302149)

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