RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD1300074
BRANCH OF SERVICE:  Army	BOARD DATE:  20131107
SEPARATION DATE:  20051215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25U/Signal Support Systems) medically separated for chronic low back pain (LBP).  The CI injured his back in June 2003 when lifting heavy equipment.  He developed LBP that radiated into his right leg.  He was referred to neurosurgery, and underwent spinal surgery in February 2004.  He required a second surgery in May 2004.  Despite some improvement, the LBP 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 back condition characterized as “degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) found the LBP condition unfitting, and rated it 10% with likely application of the Veterans’ Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB, which affirmed the IPEB findings and rating.  The CI was medically separated.

CI CONTENTION:  “The current military rating for the spinal injury condition should be changed to at least 30%, with an award to receive medical retirement.  The issues and reasons for this change are as follows: The lumbar spinal injury and surgical procedures incurred during military service has caused me to develop a chronically painful condition, which has required further surgical procedures due to progressive deterioration of the spinal disc and the development of instability and weakness within the lumbar spinal region.  As a result, I required two additional major surgical procedures over the last few years, have not been able to work since September 2010 and required various pain therapy treatments and rehabilitation.  I was terminated from my last Federal employment due to my current medical condition and status, which was causing me to be unable to perform the essential functions of my job.  Presently, I do not possess a suitable job due to my current medical condition, and do not possess a military ID card anymore as a result of my Federal Service job termination.  The loss of my ID card has had a major negative impact on me medically and financially.  I have made every effort to rehabilitate myself; but my medical condition is one that only continues to worsen over time. Currently, I am unemployed and reside in Germany because my family is German citizens.  I, however, still maintain U.S. citizenship.  I am not allowed by law to collect unemployment compensation if not currently residing within the United States.  An increase in my military disability rating to at least 30% would award me with medical retirement and a military ID card, which is something I direly need.  This would allow me access to military bases, military medical facilities and other needed facilities such as PX and Commissary.  Given that I have a serious and chronic injury in nature, the damage it has caused me emotionally, career-wise, financially, and that it was incurred during my military service, then I strongly believe that at least 30% disability with medical retirement should be awarded to me.”

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.  No other conditions are within the defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Army FPEB – dated 20050907	VA – (3 mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Residuals of Low Back Injury, with Herniated Nucleus Pulposus 	5242	10%	20060327	
No Additional MEB/PEB Entries	Other x 3	20060327	
Rating:  10%	Combined Rating:  40%	
          Derived from VA Rating Decision (VARD) dated 20060714 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his back condition continues to burden him, and the significant impact it has had on his quality of life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans’ Affairs (DVA).  The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  The DVA, however, is empowered to compensate for any service-connected condition and to periodically re-evaluate for the purpose of adjusting the Veterans rating should the degree of impairment change over time.

Low Back Pain (LBP).  In June 2003, the CI injured his back while lifting heavy equipment.  Magnetic resonance imaging showed an L5-S1 herniated nucleus pulposus.  In February 2004, the CI underwent a surgical operation on his lower back.  A second surgery was required in May 2004.  However, in spite of the surgical procedures and other treatment, his LBP persisted and an MEB was initiated.  The MEB physical exam (PE) was in June 2005, at the US Army MEDDAC, Heidelberg, Germany.  At that time, the CI reported intermittent LBP.  The pain was aggravated by sitting, standing, doing stairs or prolonged walking.  On PE, there was pain with motion in the lower back.  Thoracolumbar range-of-motion (ROM) was measured, and is summarized in the chart below.

In March 2006, 15 weeks after separation from service, the CI had a VA Compensation and Pension exam.  He reported recurrent LBP which radiated into the right leg.  He also complained of numbness and weakness of the right lower extremity.  PE revealed normal alignment and curvature of the spine.  Posture and gait were normal.  The paraspinal muscles were soft and unremarkable, with no paravertebral muscle spasm.  Neurological exam showed normal tone and strength of the musculature, with no atrophy or motor deficit.  Knee and heel reflexes were normal bilaterally.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized below.

Thoracolumbar ROM
(Degrees)	MEB ~ 6 mos. Pre-Sep
(20050607)	VA C&P ~ 3½ mos. Post-Sep
(20060327)	
Flexion (90 is Normal)	100	85	
Combined (240 is Normal)	230	210	
Comment	Pain with motion	Pain with motion	
§4.71a Rating	10%	10%	
 
The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding options for the back pain condition, but both assigned a rating of 10%.  IAW VASRD §4.71a, a rating of 10% is warranted for thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees; or combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees.  Therefore, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.  The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties.  The CI’s radicular symptoms were subjective only.  There was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP.

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.  In the matter of the chronic low back pain 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic low back pain, status post L5-S1 laminectomy 	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130130, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20140002041 (PD201300074)

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						     XXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)