RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02326
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
Separation Date:  20070502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Infantryman) medically separated for chronic low 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 “chronic low back pain (LBP)” 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 low back pain” as unfitting, rated 10%.  The CI made no appeals 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 Veterans Affairs Schedule for Rating Disabilities (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 20070309 | VA* - (~17 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam

Chronic LBP

5237

10%

Low Back Condition/LBP with L4-L5 Disc Bulge,
Pain Shooting down Legs and Grade II Spondylosis

5237

10%

20081014

Other x 0 (Not In Scope) | Other x 4
RATING:  10% | RATING:  60%
*Derived from VA Rating Decision (VARD) dated 20081107 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic LBP Condition.  The CI sustained a lower back injury on 25 August 2005 when his parachute did not open fully and he impacted a grate.  He was treated in the emergency room, released and given a temporary profile for his chronic lower back pain.  He deployed to Iraq and reported LBP during a mission while he was carrying a rucksack, wearing Kevlar, IBA, and LBE including his weapons and ammunitions.  The CI avoided sick call and tried to endure the pain while in Iraq.  Once he was back in CONUS, he was seen in primary care for sharp pain in the middle of his lower back for 4 to 5 months.  The lumbar spine X-ray showed minimal arthritic changes (spondylosis at L4-5 and L5-S1).  In March 2006, the CI was diagnosed with lumbar spondylosis L4-5 and referred to physical therapy (PT).  A lumbar spine magnetic resonance imaging showed moderately severe osetoarthropathy with degenerative disc disease; moderately severe neural foraminal narrowing at L4-5 with possible impingement of the L4 nerve roots.  The CI was referred to pain clinic and underwent three epidural injections in his back which provided only temporary relief.

Formal MEB PT goniometric range-of-motion (ROM) testing of the thoracolumbar spine was performed on 15 December 2006 (approximately 5 months prior to separation) and documented forward flexion of 20 degrees (normal 90) and combined ROM of 120 degrees (normal 240).  ROM was limited by pain and there was no change on repetition.

The MEB narrative summary (NARSUM) was dictated on 22 February 2007 (approximately 2 months prior to separation) and referenced and a physical exam dated 7 December 2007 (approximately 5 months prior to separation).  [NOTE:  This appeared to be the DD Form 2808, Report of Medical Examination, performed on 4 December 2006 by the NARSUM examiner].  That NARSUM documented that the CI reported severe back pains which were easily aggravated by activities such as lifting, bending, prolonged walking and standing.  The physical exam referenced by the NARSUM documented a normal gait.  There was spine tenderness and a positive sitting right straight leg raise (SLR-for radicular symptoms).  Motor, reflex, and sensory testing was normal.  The examiner stated “there was slight limitation of movements with associated pain.”

Evaluations for treatment at the VA the month of separation indicated the CI continued complaining of back pain radiating down both legs and causing numbness in his feet.  There was diffuse lumbar tenderness, however, no focal neurological deficits, with a normal motor exam.  A nerve conduction study (NCS)/electromyelogram (EMG) were normal without any evidence of radiculopathy or neuropathy.  The VA Compensation and Pension exam approximately 18 months after separation documented complaints of sharp knifelike moderate constant LBP that radiated down both legs to his feet daily.  The thoracolumbar ROM documented forward flexion to 80 degrees and combined 230 degrees with painful motion.  Exam documented a normal gait with no muscle spasm or tenderness.  Reflex, motor and sensory exams were normal.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA coded the back condition as 5237 (lumbosacral strain) and rated at 10%.  The PEB disability description indicated the rating was based on tenderness and ROM limited by pain, but did not specify ROM values or detail which ROM exam was used for rating.  It was therefore not possible to determine if their adjudication used VASRD criteria or application of AR 635-40, B-29 (in effect at the time).

There is a large disparity between the examinations (PT and NARSUM) with implications for the Board's rating recommendation.  There were scant other treatment note entries noting spine ROMs.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period proximate to separation.  The Board agreed that the VA exam accomplished over 12 months post-separation had little probative value for rating at separation.  Almost all exams focused on the CI’s complaints of back pain, radiating pain and episodic paresthesias (numbness and tingling with activity) and medication management of the CI’s pain, rather than spine motion limitations.

The MEB PT examination was the only formal goniometric ROM testing proximate to separation, and the only exam to consider repetition of motion which is a key DeLuca criteria.  Although the single NARSUM-referenced exam had an evaluation of “slight limitation” of motion, this was considered of decreased probative value as it did not annotate ROM degrees (non-goniometric) and did not consider repetition.  The Board consensus was that IAW VASRD §4.2 (interpretation of examination reports) and §4.46 (accurate measurement) the PT goniometric evidence had the highest probative value as the only VASRD-compliant (§4.2, §4.46) ROM evidence before the Board.  Additionally, the CI had continuing and recurring back pain and duty limitations that were not alleviated by PT, injections, or pain medication including narcotics; and the Board consensus was that the PT examination ROM limitations did appear to align with the remainder of the record’s assessment of the severity of the CI’s back pain.  The PT exam documented that the CI had forward flexion of 20 degrees which met the 40% rating criteria of “forward flexion of the thoracolumbar spine 30 degrees or less.”

The Board also discussed possible alternative (non-ROM based) or additional rating of the CI’s chronic radiating back pain analogous to sciatica (neuritis of the sciatic nerve; code 8620 IAW VASRD §4.123 [neuritis, cranial or peripheral].  However, the electrophysiology testing was normal (NCS/EMG without any evidence of a radiculopathy or neuropathy), and there was no motor impairment or fixed sensory deficit in this case.  Additionally, the general spine rating formula considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was for recommending a disability rating of 40% for the low back pain condition without adding a rating for neuropathy.

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 LBP condition, the Board majority recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain | 5239 | 40%
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140514, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXXXX AR20150014421 (PD201402326)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

PD-2014-02326