RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02526
BRANCH OF SERVICE:  Army	BOARD DATE:  20140624
SEPARATION DATE:  20051112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (88N30/Transportation Management Coordinator) medically separated for a chronic low back pain (LBP) condition.  The 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 LBP condition, characterized as “persistent low back pain consistent with a disk herniation at the left lumbar 4-5 level,” 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 radiating low back pain” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My total rating for my both conditions (lower back injury and diabetic) is 40%.  At the time of this rating, I was not insulin dependent and I was not having complications with my lower back the way it is now.  Due to monetary obligations, since I left the service, I always try to secure a job.  I completed two Law Enforcement Academies (Probation Officer Academy and Police Officer Academy).  I was hired and worked as a public officer was unable to continue due to certain medical conditions.  I have been working now as a State Probation Officer for over 6 years.  Now I am unable to continue for the same reasons.”

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 LBP condition is addressed below; the contended diabetes condition was not identified by the PEB and is not 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 20050916	VA - (10 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain 	5243	10%	Residuals. s/p Discectomy L4-5	5299-5243	20%	20060209*	
			Radiculitis, Left Lower Extremity s/p Discectomy L4-5	8520	10%	STR	
No Other MEB/PEB Entries 	Other x 1		
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060403 (most proximate to date of separation [DOS]).
*Exam not in evidence

ANALYSIS SUMMARY:  The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him 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.

Low Back Pain Condition.  Although the CI reported chronic LBP since 1999, the condition worsened after a fall in September 2003.  A herniated disc was ultimately diagnosed and a microdiscectomy at L4-5 was performed in November 2004.  However, LBP was unrelieved post-operatively despite physical therapy, medications and injections.  A magnetic resonance imaging study in February 2005 did not show recurrent disc herniation.  The MEB separation physical exam on 13 July 2005, (4 months prior to separation) noted a well-healed lumbar surgical scar, decreased but unmeasured lumbar range-of-motion (ROM) and lumbar tenderness.  A nutrition note on 5 August 2005 stated that the back condition limited the CI to walking two miles five times per week.  The narrative summary dated 8 August 2005 (3 months prior to separation) noted the CI’s pain was “not intermittent,” and he could not run or walk for periods of time, or perform sit-ups or push-ups.

The VA Compensation and Pension exam performed 3 months after separation was not in evidence.  Details as reported by the VA rater on 3 April 2006 included the absence of incapacitating episodes in the past year, that activities of daily living were unaffected and that the condition prevented the CI from working.  Muscle spasm was also reported, but gait and spinal contour were not mentioned.  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.  It was not specified if the measurements were goniometric.

Thoracolumbar ROM
(Degrees)	MEB ~3 Mos. Pre-Sep	VA C&P* ~ 3 Mos. Post-Sep	
Flexion (90 Normal)	60	45**	
Extension (30)	15	10	
R Lat Flexion (30)	30	30	
L Lat Flexion (30)	30 (40)	30	
R Rotation (30)	30	5	
L Rotation (30)	30	5	
Combined (240)	195	125	
Comment	+Tenderness, painful motion	+Painful motion	
§4.71a Rating	20%	20%	
		*C&P exam not in evidence; data derived from VA rating decision
	                     **60 degrees before repetition; 45 degrees after repetition

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), while the VA rated the condition at 20% under the same code (analogously).  The Board agreed that both of the examinations reported lumbar flexion that justified a 20% rating (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees).  Under the General Spine Formula, criteria for a 40% rating were not present.  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 the VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic radiating 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 chronic radiating LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Radiating Low Back Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131120, 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 XXXXXXXXXXXXXXX, AR20150003578 (PD201302526)

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 20% 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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA