RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02291
BRANCH OF SERVICE:  Army	BOARD DATE:  20141024
SEPARATION DATE:  20050625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (25U/Communication Support Specialist) medically separated for chronic low back pain (LBP).  The back 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 back condition, characterized as “chronic low back pain with radiculopathy and herniated nucleus pulposus” and “chronic low back pain with degenerative disc disease [DDD],” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the “back pain due to DDD without neurologic abnormality” as unfitting, rated 20%.  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 back condition is addressed below; 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 for Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20050502 | VA - (2 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain due to Lumbar DDD, w/o Neurologic Abnormality | 5299- 5242 | 20% | DDD Changes L3-L4, L4-L5 and L5-S1 Disc Protrusions; Herniated Discs L2-L3, L4-L5 and L5-S1 | 5243 | 20% | 20050901
| | | Chronic L4-L5 Lumbar Radiculopathy | 8599-8520 | 10% | 20050901
Other x 0  (Not in Scope) | Other x 5 | 20050901
Rating:  20% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20051005 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Lower Back Pain.  The first record in evidence is a primary care note dated 26 April 2004 in which the CI reported LBP for a month without recorded trauma (but later recorded as after performing a “flutter kick”).  Lumbar X-rays showed some narrowing of the disc space at L5 with an abnormal curve (scoliosis) to the left.  He was treated conservatively, but had persistent pain.  A magnetic resonance imaging performed on 14 June 2004 showed disc protrusion at L2-3, L4-5 and L5-S1 with impingement of the thecal sac (the fluid filled lining around the spinal cord), but without impingement of the nerve root or spinal cord.  Electrodiagnostic testing on 30 July 2004 was normal.  He was evaluated by a neurosurgeon in November 2004 (records not in evidence) and determined to not be a surgical candidate.  Further conservative management failed to resolve his pain and he was referred to a MEB.  At the MEB examination on 12 January 2005, 5 months prior to separation, the CI reported back pain since physical training.  The examiner noted that the CI had been seen by both orthopedics and neurosurgery; surgery was not thought to be an option.  On examination, the CI was unable to stand without the use of a cane secondary to the pain.  Range-of-motion (ROM) was reduced.  The CI was seen in primary care for the MEB dictation on 31 January 2005.  He was noted to have a reduced ROM, but had pain with one maneuver not expected to be painful for this condition (axial loading).  He had a normal neurological examination, but a painful gait and used a cane.  The examiner remarked that the pain was “out of proportion.”  Provocative testing for nerve root irritation was positive bilaterally (straight leg raise).  The ROM showed forward flexion of 55 degrees with the onset of pain at 30 degrees and a combined ROM of 155 degrees.  Repeat electro-diagnostic studies on 14 February 2005 showed mild chronic lumbar radiculopathies on the left at L4-5.  

He was seen in neurology again on 9 March 2005 to evaluate for reflex sympathetic dystrophy (a neurological condition which can cause excessive pain) due to his “pain significantly out of proportion to exam.”  He reported left leg weakness in the quads and calf.  He reported a burning sensation in the back which had increased after an injection (which did not improve his pain) and a burning sensation in his lower back.  On examination, he appeared to be uncomfortable and changed his position frequently to alleviate his pain, moving from sitting to standing.  He showed marked tenderness to very light touch of his back.  The action officer noted that this is not an expected finding for his LBP condition.  Active flexion and extension were both noted as reduced.  Provocative testing of the nerve roots was negative at this examination.  The neurological examination was normal other than some breakaway weakness in the lower extremities due to pain.  He was noted to be limping from the right sided LBP.  Reflex sympathetic dystrophy was excluded.  

The narrative summary noted the above history.  It relied upon the above examination on 12 January 2005, but also noted that the CI cringed with the axial load and that there were no radicular symptoms with the straight leg raise, only pain.  He was very tender to palpation along the lower thoracic and entire lumbar spine including the paraspinal muscles and the fatty areas on his flanks.  There were no obvious palpable muscle spasms.  He could rise on his toes and heels, but used the cane to do so.  He had difficulty getting up from the examination table and “exhibited moaning and crying out during his examination” and the “examination revealed pain significantly out of proportion to examination findings.”  The CI was evaluated in the VA emergency room 5 days after separation for ear and back pain.  He reported pain from his neck to his lower back.  He was noted to be in no acute distress, but walked with cane assistance.    No neurological or back examination was recorded.  The CI was seen in primary care 2 weeks later on 13 July 2005 and no back related complaints were recorded.  On examination, he was ambulatory and in no acute distress.  The use of a cane or other assistive device was not recorded.  The musculoskeletal examination showed an intact ROM, adequate muscle tone and no deformities.  No gross motor or sensory deficits were present on neurological examination.  He was diagnosed with chronic discogenic back pain and his medications were refilled.  

At the VA Compensation and Pension (C&P) exam performed 2 months after separation on 1 September 2005, the CI reported LBP with radiation to the legs and occasional numbness of the toes and a stabbing sensation from the lower back area to the knees and pain upon palpation.  He used a cane constantly, but could walk short distances without it.  He had straightening of the spine due to spasm.  The ROM thoracolumbar spine measurements could not be done because he was holding his standing position with the knees flexed at 30 degrees due to severe pain and weakness of the gluteus medius on the right side.  The examiner further noted there was no palpable lumbar spasm.  There was tenderness to palpation over the lumbar area.  Strength was normal other than some of the muscles of the left leg (similar to the prior electrodiagnostic testing) which were rated at 4/5 (meaning some loss of strength, but still functional).  The sensory loss was in a non-dermatomal pattern, meaning there was no loss secondary to radicular pathology.  Muscle tone was normal and atrophy absent.  The reflexes were normal.  He reported that he had been on bed rest a total of 10 times, 3 days each, over the previous 12 months.  The record does not support this contention and no mention of quarters is made other than an April 2004 note (over 12 months prior to separation) which noted that he had been placed on quarters previously.  The final record in evidence was a 4 October 2005 screening note for a primary care appointment.  The CI reported a cough and left ear pain; no complaint of LBP was recorded.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 20%, coded 5299-5242 (degenerative arthritis) and 5243 (intervertebral disc syndrome), respectively.  The 20% rating is supported by both the measured ROM and the abnormal gait with spasm recorded by the VA (although the note is inconsistent in this regard).  There is no documented incapacitation to support a higher rating under the 5243 code.  The Board considered the coding options and found no route to a rating higher than the 20% adjudicated by both the PEB and VA.  The Board then considered if there was an unfitting neuropathy present at separation.  Electrodiagnostic studies 4 months prior to separation confirmed the presence of a mild motor L4-5 radiculopathy.  However, an examination by a neurologist less than a month later was normal other than break away weakness (a loss of strength due to pain).  The primary care note on 13 July 2005, several weeks after separation, documented that the neurological examination had “no gross motor and sensory deficits.”  The C&P examiner did note that there was 4/5 strength in the lower leg, but did not document if the weakness was secondary to a neurological loss or secondary to pain, reducing its probative value.  The Board considered the evidence and determined that it does not support the presence of a separate unfitting radiculopathy at separation.

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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends 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 20131101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
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 XXXXXXXXXXXXXX, AR20150007081 (PD201302291)

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

PD-2013-02291