RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01761
BRANCH OF SERVICE:  Army	BOARD DATE:  20150408
SEPARATION DATE:  20060413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Administrative Assistant) medically separated for chronic back pain.  The  back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “herniated nucleus pulposus w/ radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic back pain without significant neurologic or electrodiagnostic abnormality” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) and submitted a statement which was considered but later withdrew her request for FPEB and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 20060130	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237 	20%	Lumbar Strain (Claimed As Thoracolumbar Condition	5237	10%	20060720	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20070418 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain Condition.  The CI developed chronic low back pain (LBP) in early 2004 after reportedly falling down some stairs.  Magnetic resonance imaging (MRI) showed mild disc bulging at L4-5 which caused mild bilateral neuroforaminal narrowing.  Mild disc bulging was also present at L5-S1, but without nerve root impingement.  There was no surgical indication, but conservative therapy was mostly ineffective.

The narrative summary (NARSUM) on 8 November 2005 (5 months prior to separation) reported that there was no improvement in the “low back pain with right leg radiculopathy.”  Physical exam showed no evidence of non-physiologic pain.  Goniometric range-of-motion (ROM) testing showed flexion of 60 degrees (normal 90 degrees) and combined ROM of 190 degrees (normal 240 degrees).  The exam was silent regarding tenderness, spasm, gait or spinal contour.

At a neurologic evaluation on 5 January 2006 the CI reported that her low back problem had improved after its onset in 2004, but worsening occurred after a motor vehicle accident in February 2005.  Current symptoms were constant LBP with burning and numbness of both buttock areas.  Prolonged sitting or standing exacerbated symptoms.  Physical exam showed a mildly antalgic gait and normal muscle strength.  No spine exam was performed.  Electrodiagnostic studies showed no evidence of neuropathy or radiculopathy.

At the VA Compensation and Pension exam performed 3 months after separation, the CI reported daily pain that radiated to both legs and feet.  Physical activity and prolonged sitting could cause pain. The CI reported that bed rest was recommended by a physician for 3 days in 2005.  Examination showed a normal gait and spinal contour.  There was no lumbar spine tenderness or muscle spasm.  Lower extremity strength was normal.  Goniometric ROM testing showed flexion of 65 degrees and combined ROM of 195 degrees.  Repetitive motion did not result in additional limitation of motion.  Thoracolumbar X-rays were normal.

The Board directed attention to a rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5237 code (lumbar strain) while the VA rated the condition at 10% using the same code.  The PEB’s rating was warranted given the lumbar flexion in evidence at the MEB exam (i.e. for flexion greater than 30 degrees but not greater than 60 degrees).  Since flexion less than or equal to 30 degrees or favorable anklylosis were not present, the next higher 40% rating was not justified.  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.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI complained of radiating pain to the lower extremities, and lower extremity numbness.  Although an MRI showed some mild neuroforaminal narrowing and the NARSUM examiner used the term “radiculopathy” to describe right lower extremity symptoms, electrodiagnostic studies showed no radiculopathy.  All examiners recorded normal neurologic findings, including muscle strength.  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 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).”  The Board therefore concluded that an 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 chronic 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 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 20140423, 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, AR20150013669 (PD201401761)

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