RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02189
BRANCH OF SERVICE:  Army	BOARD DATE:  20140527
SEPARATION DATE:  20060623

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25S/Tactical Satellite Communications) medically separated for chronic low back pain (LBP) secondary to intervertebral disc disease at L4/5 with radiculitis.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP, status post L4-5, herniated nucleus pulpous L4 condition, characterized as “fails to meet retention standards” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain secondary to intervertebral disc disease at L4/5 with radiculitis (intermittent) right lower extremity” as unfitting, rated 10% with application of VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contentions and states “Herniated disks in lower back.”

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 LBP secondary to intervertebral disc disease at L4/5 with radiculitis condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060623	VA* - (5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5243	10%	Central Disk Herniation L4-5, without Radiculopathy	5243	10%	20061108	
Other x 0 (Not in Scope)	Other x 2	20061108	
Combined:  10%	Combined:  10%	
* Derived from VA Rating Decision (VARD) dated 20061212 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Low Back Pain Secondary to Intervertebral Disc Disease at L4/5 with Radiculitis (Intermittent) Right Lower Extremity.  The narrative summary (NARSUM) notes the CI developed LBP without trauma during basic training.  This pain increased during deployment to Kuwait in 2004.  Routine X-rays of the back in October 2004 were normal.  Special back X-rays (magnetic resonance imaging), July 2005, revealed a lower back protruding disc with questionable compression of the spinal nerves.  Nerve conduction studies, in March 2006 revealed no evidence of spinal nerve compression.  The CI was treated with extensive rehabilitation therapy without resolution and was not considered a candidate for surgery.  At the MEB/NARSUM evaluation on 17 April 2006, 2 months prior to separation, the CI reported daily “achy” pain with increased “stiffness” the day following physical activity.  The CI reported taking over the counter medication for relief.  On physical exam spinal range-of-motion (ROM) was normal with flexion to be 105 degrees (normal 90 degrees).  The examiner referenced a physical therapy exam performed for the NARSUM, 2 months prior, where gait was normal and minimal loss of spinal flexion was reported.

At the VA Compensation and Pension exam performed 5 months after separation, the CI reported continued back pain without leg pain but being “free of discomfort if not doing too much activity.”  Medications included over-the-counter medication and occasional Tylenol.  On examination, the CI was in no distress with normal posture and gait.  Mild tenderness to palpation was present over the lower back without mention of spasm.  Flexion of the back was 85 degrees with pain.  Motor, sensory and spinal reflexes were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 10% code 5243 (intervertebral disc syndrome), IAW §4.71a:  the VA citing spinal flexion of 85 degrees and the PEB, painful motion, IAW §4.59.  Under code 5243, a rating of 10% requires spinal flexion of greater than 60 degrees, but no higher than 85 degrees.  A higher rating of 20% requires flexion of greater than 30 degrees but no greater than 60 degrees not supported by the record in evidence.  The Board unanimously agreed that the MEB and VA examinations were essentially equivalent with both supporting a 10% rating for the back condition at time of separation for painful motion IAW §4.40 and §4.59.

The Board then reviewed other avenues for appropriate rating.  The Board considered a rating under §4.123 (neuritis).  However, 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.  There was no evidence of incapacitating episodes for a higher rating under code 5293.  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 unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain secondary to intervertebral disc disease at L4/5 with radiculitis (intermittent) right lower extremity 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 LBP secondary to intervertebral disc disease at L4/5 with radiculitis (intermittent) right lower extremity 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131107, 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, AR20150002592 (PD201302189)

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