RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02402
BRANCH OF SERVICE:  Army	BOARD DATE:  20140506
SEPARATION DATE:  20051224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (42F10/Information System Management) medically separated for chronic low back pain (LBP).  The CI experienced LBP out of Advanced Individual Training and this continued through her brief active duty career.  She was permitted to change Military Occupational Specialty (MOS) in order to mitigate her condition; but once she was deployed, her activity level increased and her chronic back condition worsened.  She was treated conservatively with such measures as profile limitations, physical therapy and epidural steroid injections as she was not deemed a surgical candidate for her condition.  The CI’s chronic low back condition could not be adequately rehabilitated to meet the physical requirements of her MOS or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back condition, characterized as “chronic low back pain, with DDD of L4/L5 and L5/S1” 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 without neurologic abnormality” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Conditions have gotten worse.”

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 low 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 Board for Correction of Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20051110	VA - (~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…Without Neurologic Abnormality	5299-5242	10%	Spinal Stenosis, L4-5; L5-S1	5238	40%	20060202	
No Additional MEB/PEB Entries	Other x 3	20060202	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060327 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden her but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Chronic Low Back Condition.  The narrative summary (NARSUM) notes the CI developed LBP during basic training.  At a clinic visit on 26 January 2004, the CI reported back pain and some numbness and tingling in her legs.  On examination, range-of-motion (ROM) of the back was reported “full.”  Magnetic resonance imaging (MRI) of the spine at this time revealed small disc bulges in the low back area (L4-5 and L5-S1) without impingement on the spinal cord.  At a clinic visit on 11 May 2005, the ROM of the spine was normal with normal motor and sensory exams.  Deep tendon reflexes (DTR) at the knees were slightly reduced.  Routine X-rays of the spine at this time were normal and follow-up MRI revealed no significant changes from the prior referenced study.  Nerve conduction studies (NCS) on 6 September 2005 revealed no evidence of lumber motor or sensory neuropathy.  At the MEB NARSUM evaluation on 9 September 2005, 3 months before separation, the CI reported constant LBP aggravated by standing or walking or driving more than 15-20 minutes.  The MEB physical exam noted normal gait and posture.  There was tenderness to palpation with paravertebral spasms in the low back area.  Flexion of the back was reduced to 70 degrees with pain (normal: 90 degrees).  Motor and sensory exams were normal.  DTR were slightly decreased at the knee.  The examiner noted the back condition to be stable and the CI compliant with her medications and treatment.  The CI was seen by neurosurgery on 29 September 2005, when continued non-surgical treatment was recommended.  At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported being under no treatment for her back and having not been to primary care since separation from the military.  She reported daily minor back spasms, eliminated by changing position and major spasms (termed flare-ups by CI) with pain rated 6-8/10 every other day lasting no more than 45 minutes.  There was no reported functional impairment during these major spasm episodes.  The CI noted that she would take a narcotic medication for severe pain but had not taken “any in a while” because of “side effects.”  She reported being independent in walking and activities of daily living.  On physical examination, gait and posture were normal.  The spine showed no mal-alignment and subjective tenderness of the lower back without spasm was present.  Flexion of the spine was 30 degrees with pain.  There was subjective increase in pain with easy fatigability but no weakness on repetition.  Motor and sensory exams were normal.  A slight decrease in DTR at both knees was recorded.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition IAW §4.71a; the PEB rated 10%, coded 5242 (degenerative arthritis) citing flexion of 70 degrees and the VA rated 40%, coded 5238 (spinal stenosis) citing flexion of 30 degrees without reference to Deluca criteria.  Under these codes, a rating of 10% requires flexion of the back to be reduced to less than 85, but more than 60 degrees; a rating of 20% requires flexion of the back to be less than 60 but more than 30 degrees; a rating of 40% requires flexion reduced to 30 degrees or less.  The highest rating of 50% requires a fixed back without flexion movement, a condition not relevant to the evidence in this case.  

The Board noted the ROM values reported by the VA examiner to be significantly worse than those reported by the MEB examiner and in the treatment records.  There is no record of recurrent injury to explain this disparity.  The Board noted that the CI was undergoing no treatment for her back in the period from separation to C&P exam and agreed this was contributory.  The Board further opined that the finding on the C&P exam of normal posture and absent spinal muscle spasm were inconsistent with the degree of painful reduction of ROM reported.  The Board thus agreed the findings of the MEB NARSUM evaluation to have greater probative value and supported a rating of 10% for ROM of 70 degrees flexion.  Board then reviewed other avenues for appropriate rating.  The Board noted the findings of reduced reflexes at the knee level on multiple examinations and undertook to determine if a rating IAW §4.123 (neuritis, peripheral nerve) was appropriate.  The Board undertook to determine if the decreased reflexes represented a condition which would be separately unfitting.  The Board unanimously agreed there was no evidence for peripheral nerve impairment in this case, since neither muscle atrophy nor motor weakness was present, motor and sensory NCS were negative and sensory symptoms had no functional implication.  The Board concluded that the decreased reflex condition was not unfitting and that additional rating could not be recommended.  There was no evidence of incapacitating episodes for a higher rating under code 5243.  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 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 back pain 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 20131115, 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, AR20150002633 (PD201302402)

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