RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02751
BRANCH OF SERVICE:  Army	BOARD DATE:  20150626
SEPARATION DATE:  20060409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve O-3 (Engineer Officer) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (right knee pain, elevated blood pressure and tinnitus) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic mechanical low back pain” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI makes no specific contention in his application.  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 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 20060223	VA* - (~1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain	5237	10%	Lumbar DJD  with Spinal Stenosis	5242	10%	20060502	
			Rt Lower Extremity Radiculopathy	8520	10%	20060502	
Other MEB/PEB Conditions x 3 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060721 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

Chronic Mechanical Low Back Pain.  The CI developed low back pain after trauma sustained in a vehicle turret while deployed to Iraq in August 2003.  The pain was associated with right lower extremity numbness and tingling.  Magnetic resonance imaging (MRI) in June 2004 noted severe narrowing of the right side of the spinal canal and compression of the right L5 nerve root by a herniated L4-5 disc.  Mild facet joint and multilevel disc degenerative changes were also present.  Neurologic evaluation in September 2004 recorded that back pain and leg symptoms were improving and that there were no neurologic sequelae from the herniated disc.  Back pain and numbness subsided unless he resumed activities such as running.  Evaluation by a spine surgeon in April 2005 (12 months prior to separation) noted that there was never any right lower extremity pain, and that the right leg numbness had steadily improved.  Leg weakness was denied.  Strenuous activity caused some exacerbation of the numbness, but daily, intermittent back pain was the predominant complaint.  Examination showed a normal gait, mild right sacral tenderness and no spasm.  Lumbar flexion was reported as fingertips to “four inches from the floor.”  Lower extremity muscle strength and sensation were normal, and there was no sign of nerve root irritation.  Except for possible future spinal injections, no surgical options were considered.

A repeat MRI in July 2005 showed no significant canal stenosis and no nerve root displacement.  At a follow-up with the spine surgeon on 22 August 2005 (8 months prior to separation) the CI reported that physical therapy helped his pain.  Right leg numbness was “very manageable and tolerable.”  Electrodiagnostic studies (EMG) on 23 January 2006 (3 months prior to separation) found no evidence of radiculopathy.  Physical exam at that time showed a normal gait and posture.  Lumbar flexion was described as fingertips 6 inches from the floor.  The narrative summary (NARSUM) on 8 February 2006 (2 months prior to separation) reported difficulty with prolonged standing or walking and lifting items heavier than 20 pounds.  Running, pushups or sit-ups exacerbated his back pain.  Right leg numbness was exacerbated by standing, walking or track vehicle vibration.  Examination showed mild bilateral muscle spasm, but gait and spinal contour were not mentioned.

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported that his worst problem was the constant low back pain, which was exacerbated by activity.  He also noted right leg numbness with “pins and needles” and reported “weakness in the right lower extremity related to pain.”  He endorsed an ability to walk 1.5 – 2 miles, limited by back, knee and ankle problems.  He could not run.  Examination showed a normal gait.  Although a mildly abnormal spinal curvature was noted, there was no muscle spasm, and guarding was not reported.  Although repetitive motion resulted in additional pain, there was no additional limitation of motion.  Neurologic findings of the lower extremities, including muscle strength and sensation were normal.  The goniometric range-of-motion (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)	MEB ~2 Mos. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	80 (82, 76, 81)	90 (95)	
Combined (240)	225	195	
Comment	+Tenderness	+Tenderness, painful motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating, coded 5237 (lumbar strain) while the VA also rated the condition at 10%, coded 5242 (degenerative arthritis of the spine).  The Board agreed that the 10% rating, but no higher, was justified for limitation of lumbar motion (flexion greater than 60 degrees but not greater than 85 degrees noted on MEB exam; or, combined range of motion greater than 120 degrees but not greater than 235 degrees on MEB and C&P exams).  Although the VA examiner noted abnormal spinal contour, there was no requisite link to guarding or muscle spasm; therefore, the next higher 20% rating was not justified on this basis.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula.  Finally, the Board deliberated if additional disability was justified for right lower extremity radiculopathy.  The CI complained of right lower extremity numbness and radiating pain, for which the VA assigned an additional 10% rating.  Examiners recorded normal neurologic findings, including muscle strength and sensation; and EMG studies were normal.  

The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  While the CI may have experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Although the CI complained of numbness that was produced or exacerbated by certain activities, it was described as a “very manageable and tolerable” problem.  There was no evidence that it was associated with functional impairment.  The Board therefore concluded that additional disability was not justified on this basis.  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 low back pain 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 mechanical low 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 20131216, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012747 (PD201302751)

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