RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02436
BRANCH OF SERVICE:  Army   	BOARD DATE:  20150723
SEPARATION DATE:  20050720

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard CW-2 (Black Hawk Pilot) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “L4 L5 herniated disk secondary to degenerative disk disease with symptoms of radiculopathy in the right leg” and “chronic low back pain secondary to item #1” 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 subjective low back pain with degenerative disk disease involving L4-L5 disk without neurologic abnormality…” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI contended for his low back condition.  His complete submission is at Exhibit A.

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 20050620	VA* 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain with Degenerative Disk Disease Involving L4-L5 Disk without Neurologic Abnormality…	5299-5242	10%	Chronic Low Back Strain with Degenerative Disc Disease	5242	10%	NA	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING: 10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090609.  No Original VA Rating Decision or C&P exams in evidence.

ANALYSIS SUMMARY  

Low Back.  The narrative summary (NARSUM) documented a history of low back pain after lifting a locker in November 2003.  He was treated conservatively with physical therapy, activity modification, and pain medication without relief.  He also underwent epidural steroid injections and osteopathic manipulations without relief of his low back pain.  At the time of the NARSUM examination the CI reported constant pain which worsened with prolonged sitting or standing and lifting.  The physical examination was unremarkable except for pain limited thoracolumbar flexion to 80 degrees (normal is 90 degrees) and extension to 25 (normal is 30 degrees.  Diagnoses of L4-L5 herniated disc secondary to degenerative disc disease with symptoms of radiculopathy in the right leg and chronic low back pain were rendered.  The VA Compensation and Pension (C&P) examination was not in evidence

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic low back pain condition at 10% for thoracolumbar range-of-motion limited by pain; coded 5299-5242 (analogous to degenerative arthritis of the spine).  The VA rated the chronic low back pain condition at 10%; coded 5242.  The Board considered whether the evidence supported a higher than 10% rating.  The Board noted back condition was profiled and implicated in the commander’s statement.   There was no evidence of thoracolumbar spine forward flexion between 30 and 60 degrees, combined range-of-motion less than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour for a 20% rating.  The Board deliberated the right leg radiculopathy and determined that evidence did not support that it rose to the level of unfitting and therefore, could not be recommended for additional disability rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic low back pain secondary to degenerative disc disease was appropriately recommended in this case. 

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 low back pain secondary to degenerative disc disease and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right leg 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 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 20131108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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 XXXXXXXXXXXXXXX, AR20150012708 (PD201302436)

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