RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02252
BRANCH OF SERVICE:  Army	BOARD DATE:  20150312
SEPARATION DATE:  20030314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling Reserve E-4 (Multimedia Illustrator) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his physical profile authorized him to perform two alternate aerobic physical fitness test events.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “low back pain without radiculopathy” and “mild degenerative disc disease,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic non-radiating low back pain” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was combined as a single condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The Veteran contends that the lumbar injury he suffers from is more severe than currently evaluated, and that an increased evaluation should be assigned.  The Veteran is entitled to an increased rating for chronic low back pain with narrowing at L5-S1, rated as 10 percent, March 8, 2006 by the Department of Veteran Affairs.”

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 20050727	VA* -Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Low Back Pain…	5237	0%	Chronic Low Back Strain	5237	10%	STR	
Other x 0 (Not In Scope)	Other x 0	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060308 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Non-Radiating Low Back Pain Condition.  The CI developed the acute onset of LBP in early 2003 while performing sit-ups.  X-rays showed mild degenerative changes and magnetic resonance imaging mild L5-S1 degenerative disc disease without disc herniation.  Ongoing pain did not respond to conservative treatment and interfered with his desire for training and exercise.

The MEB physical exam on 15 November 2004 (10 months prior to separation) noted the absence of scoliosis.  “Full” (unmeasured) flexion and extension was present without associated painful motion.  The narrative summary (NARSUM) performed 9 months prior to separation noted complaints of daily mid-lumbar pain with radiation to the buttocks.  Once per month he experienced a flare-up during which he could not get out of bed.  Prolonged sitting exacerbated the condition and caused problems focusing in his civilian job.  He denied radiating pain to the lower extremities or lower extremity weakness.  He took over-the-counter medication for pain.  Physical exam showed mild muscle spasm and normal spine curves, but was silent regarding gait, tenderness or painful motion.  Goniometric range-of-motion (ROM) testing showed lumbar flexion of 100 degrees (defaults to normal of 90 degrees) and combined ROM of 180 degrees (normal 240 degrees).  There is no VA Compensation and Pension examination in evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB cited full flexion and the absence of tenderness as justification for a 0% rating under the 5237 code (lumbosacral strain).  The VA also used the 5237 code, but rated the condition at 10%.  The Board agreed that the NARSUM exam justified a 10% rating for combined ROM greater than 120 degrees but not greater than 235 degrees.  Although mild muscle spasm was observed, there was no requisite link to abnormal gait or spinal contour to support the next higher 20% rating.  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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic low 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 chronic non-radiating LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5237 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 Non-Radiating Low Back Pain 	5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131106, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXX, AR20150012450 (PD201302252)

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 10% 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						    XXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA