RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxx	 	CASE:  PD13-00849	
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20131115
SEPARATION DATE:  20060930				 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (25U, Signal Support) medically separated for low back pain, without neurologic deficit.  The CI developed low back pain (LBP) during deployment to Iraq.  Halfway through his tour, the back pain was so debilitating that he was removed from normal duties and assigned to the tactical operations center.  Upon return to home base in Germany, he was treated with conservative treatment measures.  However, the LBP condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent profile and underwent a Medical Evaluation Board (MEB).  The MEB forwarded his LBP condition to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB found the LBP condition unfitting, and rated it 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals at that time, and was medically separated with a 0% disability rating.  

CI CONTENTION:  “I believe the rating is inaccurate because my disability has rendered me from being able to work.  My disability is service connected.  Injury and disability service connected from combat during OIF II in 2004.  I was deemed unfit to return to combat with my next unit because I was on permanent profile because of my medical conditions.  My injuries are from combat related situations.  Please review.”

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 Service rating for the unfitting low back pain is addressed below.  No other conditions are within the Board’s defined purview.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Army Board for Correction of Military Records (BCMR). 

RATING COMPARISON:  
   
Army PEB – dated 20060809	VA – (Exam was ~ 5 mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, without Neurologic Deficit	5237	0%	Myofascial Pain Syndrome, of the Lower Back	5299-5237	20%	20070308	
No Additional MEB/PEB Entries	Other x 4	20070308	
Combined:  0%	Combined:  70%	
    Derived from VA Rating Decision (VARD) dated 20070517 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his LBP 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 Service disability entitlements as those under which the military Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service members for future severity or potential complications of conditions.  That role and authority is granted to the Veterans’ Administration (VA).  The Board also acknowledges the CI’s assertion that his condition should have been considered combat related.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to this matter. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of DES fitness and rating determinations, based on severity at separation. 

Low Back Pain (LBP).  In 2004, the CI had onset of LBP while deployed to Iraq.  He was removed from his normal duty position, and placed on light duty in the Tactical Operations Center.  When his unit returned to home base in Germany, the CI began receiving physical therapy (PT).  Magnetic resonance imaging (MRI) in December 2005 was normal.  The LBP was primarily in the left lower back, and did not radiate to the lower extremities.  The pain was aggravated by bending, lifting, and prolonged sitting or standing.  In spite of PT, steroid injections, and other forms of treatment, the LBP persisted and an MEB was initiated.  The MEB physical examination (PE) was in July 2006 at Darnall Army Medical Center (DAMC), Fort Hood.  On PE of the lower back, there was no erythema (redness), warmth, tenderness, or palpable mass.  The spine appeared to be grossly aligned.  Forward flexion was limited by pain.  Gait was normal.  Heel walk, toe walk, and heel-to-toe walk were all normal.  Neurological exam showed normal sensation, normal reflexes, and normal motor strength.  There was no gross muscle atrophy of any major muscle groups.  Thoracolumbar range of motion (ROM) was measured by PT, and is summarized in the chart below.

As noted above, the CI was medically separated from service on 30 September 2006.  Five months later, in March 2007, he had a VA Compensation and Pension (C&P) exam.  At that time, the CI reported that he had not seen a doctor since leaving the Army.  He denied any deficits in activities of daily living (ADLs).  He was using Naprosyn and Aleve “as needed” for pain.  On PE, posture was normal but his gait was mildly antalgic.  The CI was constantly trying to pop his back, saying it was very uncomfortable and would feel better if he could pop it.  There was some tenderness of the back, and moderate muscle spasm.  Straight leg raise (SLR) was difficult to test, due to pain in the knees and back.  X-ray of the lumbosacral spine showed slight deviation and curvature, most likely due to muscle spasm.  The ROM evaluations which the Board weighed in arriving at its rating recommendation, are summarized below.
      
Thoracolumbar ROM
(Degrees)	MEB (PT) ~ 2½ mos. Pre-Sep
(20060706)	VA C&P ~ 5 mos. Post-Sep
(20070308)	
Flexion (90 Normal)	25	50	
Combined (240)	110	125	
Comment	(inconsistencies noted)	(painful motion)	

The Board carefully reviewed all of the evidentiary information available, and directs attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding and rating options for the LBP condition. The PEB coded it 5237 (lumbosacral strain) and rated it 0%.  The VA used code 5299-5237 (analogous to lumbosacral strain) and assigned a disability rating of 20%.  Thoracolumbar forward flexion was limited to 25 degrees at the June 2006 PT exam.  The Board determined that there were inconsistencies in that ROM evaluation, which cast some doubt on its validity and probative value.  Forward flexion limited to 25 degrees would almost certainly preclude certain activities of daily living (ADLs) such as sitting in a chair, riding in a car, or getting dressed.  The record does not indicate that the CI was unable to sit in a chair, ride in a car, or dress himself.  In fact, the record indicates that the CI gave subjective information while sitting in a chair.  The Board determined that the inconsistencies in the June 2006 PT exam caused diminution in the validity and probative value of that PE.  Therefore, the Board assigned greater probative value to the March 2007 C&P exam.  At that PE, forward flexion was 50 degrees, and combined thoracolumbar ROM was 125 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 20% rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees.    
  
After due deliberation, the Board determined that a rating of 20% was warranted.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the LBP condition.  It is appropriately coded 5299-5237 (analogous to lumbosacral strain), and IAW VASRD §4.71a, meets criteria for the 20% rating level based on forward flexion greater than 30 degrees but not greater than 60 degrees.	

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.  As discussed above, PEB reliance on the USAPDA pain policy may have been operant in this case and the CI’s back condition was adjudicated independently of that policy by the Board.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, IAW VASRD §4.71a.   

There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board, therefore, 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 low back pain, without neurologic deficit	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           	xxxxxxxxxxxxxxxxxxxx, 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, AR20140003450 (PD201300849)

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						     xxxxxxxxxxxxxxxxx
						     Deputy Assistant Secretary
						         (Army Review Boards)