RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00643
BRANCH OF SERVICE:  Army	BOARD DATE:  20141114
SEPARATION DATE:  20070422

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92W/Water Treatment Specialist) medically separated for chronic back pain.  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 condition, characterized as “lumbar spondylosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (ulnar nerve injury) for PEB adjudication.  The Informal PEB adjudicated his back condition as unfitting, rated at 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 back condition is addressed below; and, no additional conditions are 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 20070302	VA - (1.5 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Lumbar Spondylosis…	5242	10%	20070605	
Other x 1  (Not in Scope)	Other x 0 (Not in Scope)		
Rating:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20070724 (most proximate to date of separation)

ANALYSIS SUMMARY:

Low Back Condition.  The narrative summary (NARSUM) notes the CI to develop low back pain with radiation to his legs in May 2006 during basic training.  Routine X-rays of the back were negative.  A magnetic resonance imaging (MRI) of the back performed on 31 May 2006, revealed mild disc bulging in the lower spine without spinal nerve compression.  A subsequent MRI in December 2006 showed no change in the back condition.  Nerve conduction studies (NCS) of the back performed on 30 June 2006, revealed no evidence of spinal radiculopathy.  No surgery was recommended.  On physical therapy evaluation performed in December 2006, range-of-motion (ROM) of the back, measured with a goniometer, was Flexion 90 degrees (Normal).  At the MEB NARSUM evaluation on 22 February 2007 (2 months prior to separation), the CI reported continued back pain with activity.  The MEB physical exam (DD Form 2808) noted the gait to be normal and mild tenderness with palpation in the low back area.  ROM of the spine was reported to be “full.”  

At the VA Compensation and Pension evaluation, performed approximately a month after separation, the CI reported no episodes of incapacitation and the impact of his back condition on activities of daily living to be mild to moderate.  On physical examination, gait and posture were normal.  On exam of the back, motor strength, sensory and reflexes were normal.  ROM of the back was Flexion 90 degrees (Normal) with pain, but no muscle spasm.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10% for painful motion using different codes IAW §4.71a and §4.59; the PEB using code 5237 (lumbosacral strain) and the VA using 5242, (arthritis of the spine).  A higher rating of 20% under both codes requires flexion of thoracolumbar spine greater than 30 degrees but less than 60 degrees.  The Board unanimously agreed that the MEB and VA examinations were equivalent and both supported a 10% rating for the back condition for painful motion.  The Board unanimously agreed that the record in evidence did not support a compensable rating for the back condition using range of motion criteria.  The Board then considered other avenues for appropriate rating.  There was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, NCS were negative and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under code 5243.  The Board found no other appropriate codes for consideration.  After due deliberation, considering the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously 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 back 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 20140114, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150007103 (PD201400643)

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