RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100838 SEPARATION DATE: 20070904

BOARD DATE: 20120807

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SGT/E-5, 63B20, senior light wheeled vehicle mechanic, medically separated for chronic low back pain (LBP) secondary to degenerative disc disease (DDD) with herniated nucleosus pulposis L4-5 and retrolisthesis L5-S1. The CI sustained injuries to his back in 2003 and 2005. The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The LBP condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Three other conditions, identified on the chart below, were listed as medically acceptable. The PEB adjudicated the LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 10% disability rating.

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

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 Army Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain. The CI first developed back pain when a 60 pound alternator fell on his back in 2003 and it resolved with conservative treatment. However, in 2005 he had sudden onset of severe LBP with spasms after a 4 mile run and this time it did not respond to treatment. His pain radiated down his left leg and worsened over time. By November 2006, he was unable to perform the duties required of his MOS. A magnetic resonance imagining (MRI) performed in November 2006 showed the L4-5 disc protruding and compressing the left L5 nerve root. A previous MRI from September 2005 had similar findings. Plain X-rays noted a narrowing of the L5-S1 disc space and mild retrolisthesis of L5 on S1. He had undergone extensive physical therapy and had been evaluated by both physical medicine and neurosurgery and had been offered a trial of epidural steroid injections but he opted against this treatment. In December 2006 neurosurgery discussed surgical treatment and stated an electromyography (EMG) test would be required before surgery. The CI was treated with multiple modalities including osteopathic manipulation and acupuncture but continued to have pain. Left lower extremity EMG testing in April 2007 was normal and it had previously been normal in February 2006; therefore, surgery was not indicated. In December 2006, his previous permanent L2 profile was changed to a temporary L3 and in May 2007 the L3 profile was made permanent. The commander’s statement from February 2007 definitively states the CI was not able to perform required functions of his MOS.

There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, as summarized in the chart below.

The MEB narrative summary (NARSUM), completed 7 months prior to separation, noted throbbing pulsating pain in the lower spine that lasted more than half of each day and was rated at 6/10. The pain was increased with coughing, sneezing, bowel movements, sitting in place for more than 10 minutes, riding in a vehicle for long periods of time, running, jumping, or lifting more than 30 pounds. The pain improves with standing, stretching, walking, massage, ice and heat. He was unable to work under the vehicle or lift heavy parts out of the engine. Performing vehicle test driving was painful, and he could not wear heavy body armor. He was able to supervise and instruct other Soldiers in vehicle repair. The MEB NARSUM does not include straight leg raise testing but this was positive on the left side at multiple outpatient visits available for review in the record. The VA Compensation and Pension (C&P) exam completed about two weeks prior to separation reported a similar clinical history. Treatment at this time consisted of physical therapy, narcotic pain medication, and a muscle relaxer. His pain was rated at 9/10 and described as aching, oppressive and sharp in nature and traveled down his left leg. The pain was relieved by rest and medication. The CI reported incapacitating episodes as often as two times per month, lasting 2 days. He had 6 days of incapacitation over the previous year. He was still on active duty at the time of this exam.

The PEB rated the back condition at 10% under code 5243 intervertebral disc syndrome citing flexion limited by pain to 54 degrees. The VA used a different code, 5237 lumbosacral strain, and applied a 20% rating based on flexion limited to 40 degrees on its C&P exam. Neither the PEB nor the VA applied a separate rating for radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence. Both the MEB NARSUM and VA C&P examinations were completed prior to separation from service, and both warrant a 20% rating IAW the general spine rating as specified in §4.71a with thoracolumbar flexion limited to greater than 30° but not greater than 60°. Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. While this CI had significant pain radiating into his left leg, no altered sensation, motor impairment, or alteration of reflexes was noted. The Board further considered rating under code 5243 utilizing the formula for rating intervertebral disc syndrome based on incapacitating episodes. The service treatment record (STR) did not include any episodes of incapacity defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The VA C&P examination noted 6 days of incapacitation in the past 12 months. However, this would not meet the criteria for a 10% rating which requires a total duration of at least a week of incapacitation but less than 2 weeks during the past 12 months. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back 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. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20% coded 5237 IAW VASRD §4.71a.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20070904, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXXXXXXXXXX, AR20120015477 (PD201100838)

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 XXXXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA