RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02327
BRANCH OF SERVICE:  Army	BOARD DATE:  20140828
SEPARATION DATE:  20060329

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (96B/Intelligence Analyst) medically separated for a back condition.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain (LBP) with radiculopathy to left leg due 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 chronic LBP as unfitting, rated at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the US Army Physical Disability Agency which affirmed the PEB finding and rating.

CI CONTENTION:  “I thought it very unfair to be deemed not fit for duty but only 20% disabled.  That doesn’t seem fair or accurate.”

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.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that suggests a higher service rating should have been granted on the unfitting medical condition documented at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service USAPDA – Dated 20051109 | VA* - (2.4 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain | 5299-5242 | 10% | DDD Lumbar Spine with Left Radiculopathy | 5242 | 10% | 20060117
Other x 0 (Not in Scope) | Other x 5 | 20060117
Combined:  10% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20061113 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The service treatment record indicated the CI experienced a sudden onset of severe lower back pain (LBP) with some radiation into the left leg while bowling in April 2004.  A magnetic resonance imaging (MRI) in August 2004 demonstrated disk herniations at L3-L4, L4-L5 and L5-S1 with associated central and foraminal stenosis (narrowing of nerve passageways).  A follow-up MRI in June 2005 showed DDD at L3-L4, L4-L5, and L5-S1 with some foraminal narrowing.  Electro-diagnostic studies of the left lower extremity demonstrated mild, left-sided, subacute, L4 lumbar radiculopathy (spinal nerve root irritation or injury) with no evidence of mononeuropathy (single nerve abnormality) or polyneuropathy (multi-nerve abnormalities) in February 2005 and similar findings, albeit slightly better in September 2005.  Pain was described as constant with an intensity of 4/10 and there was no urinary or gastrointestinal dysfunction.  Conservative treatment, including physical therapy, did not resolve the pain.  Lumbar spine flexion was 50 degrees and extension was 25 degrees in both July and September 2004.  The CI was not a candidate for surgery.  Pain increased with prolonged sitting and was much worse with bending and squatting, but the CI was able to lift ten pounds and occasionally up to 50 pounds.  

At the MEB Examination dated 6 July 2005 (approximately 9 months prior to separation), the CI reported herniation of discs in the lower back.  The examination revealed slight weakness of the left leg; a positive straight leg raise (SLR) on the left with absent left knee and left ankle jerks (reflexes).  There was also a decreased range-of-motion (ROM) of flexion and extension of the spine.  At the MEB narrative summary examination dated 22 June 2005 (approximately 8 months prior to separation), the CI reported he was able to do most all of the activities required of his Military Occupational Specialty (MOS) (intelligence analyst), but was unable to perform any of the physical activities required of all soldiers.  He received a permanent L3 profile on 27 June 2005 that precluded him from moving from a fighting loading position to a fighting position, rushing under fire or part take in any physical fitness training.  He was allowed to exercise at his own pace and ran at his own distance and to assume a firing position of comfort.  The commander’s statement dated 29 June 2005 noted that in spite of the CI’s limitation due to chronic back pain listed in his profile, he was able to perform duties as required of a soldier in his grade and MOS and his medical condition had not caused any detriment to mission accomplishment.  His duty performance in all areas was exceptional and his profile had not impacted his ability to perform missions.  In a rebuttal submitted to the MEB by the CI and dated 4 November 2005, he noted that he was able to successfully meet the standards for a 2.5 mile walk and requested that it be utilized for his physical fitness testing and that he be retained on active duty.

At the VA Compensation and Pension (C&P) orthopedic examination dated 17 January 2006 (approximately 3 months prior to separation), the CI reported LBP for several years beginning in March 2004, which was marked by radiation along the left lower extremity down to the calf and foot.  The pain was constant with flare-ups caused by bending forward, lifting heavy objects and sitting or standing in one position for a long time.  During the flare-up his back became stiff with limited motion.  However, the examiner could not “provide the exact degree of limitation without resorting to speculation.”  Spasm was not recorded.  There were no incapacitating episodes in the year preceding the examination.

The 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)

12.6 Mo. Pre-Sep
(20050317)

PT for NARSUM
8.9 Mo. Pre-Sep
(20050706)

VA C&P 2.4 Mo. Pre-Sep
(20060117)

Flexion (90 Normal) | 90 | 30* | 80 (pain at 50)
Extension (30) | 10 | 10* | 30
R Lat Flexion (30) | -- | 10* | 20
L Lat Flexion (30) | -- | 10* | 20
R Rotation (30) | -- | 30** | 20
L Rotation (30) | -- | 25** | 20
Combined (240) | -- | 145 | 190

Comment

Ambulated with a functional gait pattern

* Using an inclinometer ** Using a goniometer
Tender to palpation from L3 to S1 and slight tenderness to the left of L4 in the paralumbar muscles, SLR left leg-75⁰ (+), FABERE test left-pain lower back, Neuro exam-normal.

SLR left leg-45⁰, (+) Lasegue sign; SLR right leg-85⁰, (-) Lasegue sign; Neuro exam- normal.  DeLuca criteria negative.

§4.71a Rating | 0% | PEB 10% | VA 10%
IAW §4.59 (Painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  The more proximate C&P examination, just over 2 months prior to separation, was accomplished by an orthopedic surgeon.  It was therefore assigned a higher probative value in rating determination.  Both the PEB and VA assigned a rating of 10%, using the code 5242, degenerative arthritis.  The Board considered other coding options for the back condition, but none provided a route to a rating higher than the 10% assigned by both the PEB and VA.  Because the VA indicated its diagnosis for rating was DDD lumbar spine with left radiculopathy, the Board then considered if an unfitting radiculopathy were present at separation.  The gait and neurological examinations were documented as normal on the orthopedic C&P examination.  Also, in his rebuttal, the CI noted that he could successfully meet the time requirements for the 2.5 mile walk while the commander noted that there were no duty limitations from the back condition.  The evidence does not support the presence of an unfitting radiculopathy present at separation.  The Board noted that even were one present, the disability rating would be 0% using code 8723 (neuralgia-mild) IAW VASRD 4.124, providing no advantage to the CI.

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 chronic LBP 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the (implied) contended radiculopathy, the Board unanimously recommends that this cannot be added as an additionally unfitting condition.  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 20131111, 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, AR20150007080 (PD201302327)

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-2013-02327