RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02166
BRANCH OF SERVICE:  Army	BOARD DATE:  20150313
SEPARATION DATE:  20041210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army Reserve Officer O-3 (Judge Advocate) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3 profile which allowed for an alternate aerobic event to satisfy physical fitness standards and was referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “lumbar spondylosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other medically acceptable conditions (bilateral foot pain, migraine headaches and right cephalgia).  The Informal PEB adjudicated “chronic back pain, due to lumbar spondylosis, without neurologic abnormality” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting, and therefore not rated.  The CI submitted a written appeal, but waived a Formal PEB.  The PEB reviewed the written appeal and affirmed their findings.  The case was then reviewed by the US Army Physical Disability Agency who also affirmed the PEB findings and recommendations.  The CI was medically separated.

CI CONTENTION:  “Rated much lower because other conditions that were service connected disabilities were not considered upon separation.  They were considered by VA in my 80% rating.”

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:

Service IPEB – Dated 20040419	VA - (6.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Due to Lumbar Spondylosis, Without Neurologic Abnormality	5299-5237	10%	HNP L5-S1 w/o objective evidence of Residual Lower Extremity Radiculopathy	5299-5239	10%	20050627	
Other x 3 (Not in Scope)	Other x 2	
Rating:  10%	Combined Rating:  30%	
Derived from VA Rating Decision (VARD) dated 20050802 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain, Due to Lumbar Spondylosis, Without Neurologic Abnormality.  The CI first reported low back pain (LBP) after falling during a training exercise in August 2002.  In addition to back pain, the service treatment record inconsistently indicated the CI experienced radicular pain and paraesthesia into one or both lower extremities.  A magnetic resonance image performed in December 2002 revealed disc bulging and protrusion of the lumbosacral spine.  Diagnosed with discogenic LBP, the CI underwent epidural steroid injections, manipulation, and physical therapy with only minimal relief.  There were no periods of incapacitation.  A physical assessment performed on 16 September 2004 (3 months prior to separation) indicated “normal” for back range-of-motion (ROM) and strength, reflexes, straight leg raises, and gait.  Persistent painful symptoms initiated an MEB.

The MEB narrative summary examination on 29 March 2004 (8 months pre-separation), noted the CI’s chief complaint as “low back pain” described as constant which requires “regular anti-inflammatory medication and daily use of [narcotics].”  Her physical examination (PE) was completely normal, except lumbar tenderness was noted.  The examiner assessed her pain as moderate and constant and her diagnosis was lumbar spondylosis.

The VA Compensation and Pension examination on 27 June 2005 (7 months post-separation), the CI endorsed LBP “flare-ups” occurring twice weekly with varying duration and precipitated by twisting, turning, bending, repeat lifting, and or riding/driving in a car more than 30 minutes.  “She does experience occasional radiation of the pain on the right > left lower extremity posteriorly to the calf.”  The VA PE revealed lumbosacral tenderness with limited and painful motion.  Heel-toe walking, deep tendon reflexes, motor strength, and distal sensation were intact.  Bilateral straight leg raise were negative; “neither elicited radicular symptoms.”  Her diagnosis was listed as herniated nucleus pulposus L5-Sl, without objective clinical evidence of residual lower extremity radiculopathy or spasm.  The examiner stated, “I found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance (such as with repetition) except as noted on the physical examination.”  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 ~ 8 Mo. Pre-Sep
	VA C&P ~ 7 Mo. Post-Sep
	
Flexion (90 Normal)	90 	90 	
Combined (240)	240	220	
Comment	tenderness	tenderness	
§4.71a Rating	10%	10%	
  
The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition differently, they both rated 10% using analogous codes of 5237 (lumbosacral strain) and 5239 (spodylolisthesis), respectively.  Board members agreed that sufficient evidence of lumbar tenderness was present which did not result in either an abnormal gait or spinal contour to justify the 10% rating IAW VASRD §4.71a.  The Board then considered application of §4.40, which allows for a higher rating if evidence of additional functional loss is present.  Board member’s concluded however that there was no examination in evidence on which to base a conclusion that repetitive motion resulted in any additional disability.  There also was no evidence of a ratable neurologic impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating.  Therefore, Board members agreed that a rating higher than 10% was not justified.  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 low back 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 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 20130915, 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 XXXXXXXXXXXXXXX, AR20150011170 (PD201302166)

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