RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01293
BRANCH OF SERVICE:  Army	BOARD DATE:  20150115
SEPARATION DATE:  20080828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reservist E-4 (Petroleum Supply Specialist) medically separated for low back pain (LBP).  The LBP 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 and referred for a Medical Evaluation Board (MEB).  The low back pain, characterized as “low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “small L5-S1 herniation” as unfitting and rated it 10% with likely application of VA Schedule for Rating Disabilities (VASRD) standards.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My back pain are not better 3 or 4 times a week I feel very painful but I have to work.  Disc problems a (a sciatic nerve).”

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:

Service IPEB – Dated 20080627	VA - (29 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Small L5-S1 Disc Herniation	5299-5243	10%	L5-S1 Herniated Disc; Lumbosacral Strain and Myositis	5243	40%	20060314	
			Clinical L5-S1 Radiculopathy	8599-8520	20%	20060314	
Other x 0 (Not in Scope)	Other x 0	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060406 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY: 

Low Back Pain. During annual training in June 2005, the CI developed LBP after repeated heavy lifting.  The LBP was left sided and radiated into his left leg.  He was initially treated with non-steroidal anti-inflammatory medications and duty restrictions.  His LBP continued and a plain film X-ray of the lumbar spine was consistent with muscle spasm.  In spite of physical therapy (PT) treatment, his LBP continued and a magnetic resonance imaging study performed in September 2005 revealed a small herniated disc at L5-S1 was identified.  Also in September 2005, due to the left sided radicular pain, an electromyogram (EMG)/nerve conduction study (NCS) was performed and showed left side nerve root irritation.  At the VA Compensation and Pension (C&P) exam performed on 14 March 2006 (29 months prior to separation), the CI reported shocking, stabbing pain in his lumbosacral area that radiated specifically to his left leg and foot, lasting 12-20 hours a day.  He had a number of PT sessions without relief and was pending a visit for epidural steroid injection.  The pertinent physical exam findings are summarized in the chart below.  The CI underwent two epidural steroid injections and a follow-up note in November 2006 documented the following:

“29 y/o MALE who has responded successfully to epidural blocks x 2 with decreased pain to 2/10 and decrease need of medications.  Has had maximal benefits from PT.  Will send for back school for education on ergonomics and exercises to prevent recurrences.”

The narrative summary (NARSUM) prepared 11 months prior to separation noted the CI reported continued with LBP rated at 3/10 with flare-ups two to three times a week where the pain is 5/10.  Pain was exacerbated by prolonged standing, sitting and walking and was relieved by rest and pain medications.  The pertinent physical exam findings are summarized below.  Three months prior to separation, a follow-up EMG/NCS evaluation was performed which was normal and the CI was evaluated by PT where thoracolumbar spine range-of-motion (ROM) measurements were accomplished and are summarized in the chart below.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below:

Thoracolumbar ROM (Degrees)	VA C&P 29 Mos. Pre-Sep	NARSUM 11 Mos. Pre-Sep	PT 3 Mos. Pre-Sep	
Flexion (90 Normal)	50	90	85	
Combined (240)	110	240	230	
Comment	Pos. Painful motion; Pos. tenderness & muscle spasm; Normal sensation; decreased strength left great toe only	Normal gait & strength; Pos. tenderness; Neg. straight leg raise; Normal reflexes & sensation	--	
§4.71a Rating	20% (VA 40%)	10% (PEB 10%)	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code of 5299-5243 (intervertebral disc syndrome) and rated it 10%.  The VA also applied code 5243 and rated it 40% based on a forward flexion of less than 30 degrees citing the C&P examiner’s statement “Thoracolumbar spine forward flexion equals 50 degrees painful in the last 10 degrees with a functional loss of 40 degrees due to pain.”  Although the C&P exam was well outside of the 12 month window given for consideration of VA evidence, the Board reviewed the VA evidence (C&P exam and VARD) for appropriateness of rating.  The Board reviewed the C&P examiner’s statement quoted in the VARD and consensus was that the actual forward flexion ROM measurement should have been 40 degrees and not the 10 degrees that the VA rating specialist based the VA rating on.  That 40 degree ROM measurement would have resulted in a 20% disability rating 29 months prior to separation.  The evidence supports that at the time of the VA rating, the CI’s LBP was worse than it was more proximate to separation.  After the C&P exam, the CI underwent two epidural steroid injections which he responded favorably to, and had a normal EMG/NCS.  
The Board assigned the highest probative value to the PT exam performed 3 months prior to separation.  The evidence supports that the CI’s LBP condition was stable in the last 12 months prior to separation as the NARSUM ROM measurements are consistent with the ROM measurements documented in the PT exam.  The Board considered the alternative rating scheme for code 5243 which is based on incapacitating episodes as noted in the VASRD.  The evidence does not document any periods of such incapacitation required for the appropriate application of that rating criteria.  The Board also considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for an associated sciatic radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no evidence of a sensory deficit, and the motor impairment was relatively minor and cannot be linked to significant functional consequence.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from any residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating 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 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 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 20140310, 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 XXXXXXXXXXXXXXX, AR20150011041 (PD201401293)

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