RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20030130
NAME: XXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200700
BOARD DATE: 20121213
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (95B/Military Police), medically separated for
chronic low back pain (LBP). The condition began as a consequence of injury in 1999 and was
not associated with a surgical indication. The CI did not improve adequately with treatment to
meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical
fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation
Board (MEB). The MEB forwarded chronic LBP with multiple level lumbar degenerative disc
disease (DDD) to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40‐501.
Hypertension and right shoulder strain conditions, identified in the rating chart below, were
also identified and forwarded by the MEB. The PEB adjudicated the chronic 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.
CI CONTENTION: “MVA at high rate of speed (I was stopped and struck btwn 60‐65 mph)
Informed the Emergency room that I struck my head (but could not recall on what). My
Cervical Spine was not ever checked until after separation and the VA discovered C4, C5 & C6
were impacted, Lupus & migraines too.”
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. The cervical spine, lupus and migraine
conditions are not within the Board’s purview. 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 Correction of Military Records.
RATING COMPARISON:
VA (2 Mos. Post‐Separation) – All Effective Date 20030131
Condition
Limitation of Motion, Lumbar
Spine, Disc Disease
Radiculopathy, Right Lower
Extremity
Code
5293‐5292
Rating
10%*
Exam
20030325
5293‐8520
10%
20030325
No VA Entry
Not Service Connected
Fibromyalgia
Cervical Spondylosis
Systemic Lupus Erythematosus
with Sjogrens Syndrome
5025
5010‐5237
6350
0% X 2 / Not Service‐Connected x 3
Combined: 50%
20%
10%
10%
20031030
20040130
20040115
20030325
Service IPEB – Dated 20021202
Condition
Code
Rating
Chronic Low Back Pain
5295
10%
Hypertension
Right Shoulder Strain
Not Unfitting
Not Unfitting
↓No Addi(cid:415)onal MEB/PEB Entries↓
*VA decision 20051021 increased to 20% effective 20050819; combined 70% including, non‐PEB conditions
Combined: 10%
ANALYSIS SUMMARY:
Chronic Low Back Pain Condition. The 2003 Veteran Administration Schedule for Rating
Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time
of separation, were changed to the current §4.71a rating standards in 2004, and were identical
to the 2003 VASRD standards used by the VA in its initial rating decision. The pre‐2004 ratings
were based on a judgment as to whether the disability was mild, moderate or severe. The
2004‐to‐current standards are grounded in range‐of‐motion (ROM) measurements. IAW DoDI
6040.44, this Board must consider the appropriate rating for the CI’s back condition at
separation based on the VASRD standards in effect at the time of separation (i.e. pre‐2004
standards. A motor vehicle accident on 12 September 1999 resulted in low back pain and
occasional right lower extremity radicular pain. Evaluation of persistent pain with magnetic
resonance imaging (MRI) on 5 December 1999 showed disc bulge at L4‐5 and L5‐S1 and
neuroforaminal narrowing at L5‐S1. She was treated with physical therapy and injections
without significant pain relief. Follow‐up MRI on 27 June 2002 showed disc bulging from L4 to
S1 with some disc desiccation, but without central or neuroforaminal stenosis. Evaluation by a
neurosurgeon determined that the condition did not warrant surgery. At the narrative
summary (NARSUM) exam 3 months prior to separation, the CI reported daily pain and required
narcotic pain medication for severe pain. She could not wear load‐bearing equipment or
perform prolonged marching, running, jumping or lifting greater than 15 pounds. Physical
examination revealed tenderness of the lower back, but no spasm. Straight leg raise (SLR)
testing was negative for pain radiating down the lower extremity. At a civilian consultation at
the time of separation, the CI denied muscle weakness or loss of sensation. Examination
revealed normal muscle strength. At the VA Compensation and Pension (C&P) exam 2 months
after separation, the CI reported daily pain severity of 4‐8 on a 10 point scale associated with
radiation to the posterior aspect of the thigh, leg and plantar aspect of foot (right versus left
lower extremity was not specified). Numbness in the distal leg and foot occurred sometimes.
She denied use of assistive devices for walking. She could no longer ride horses or roller blade,
but could swim. Examination revealed a normal gait and spinal curvature. Flexion was 55
degrees and extension 5 degrees. Rotation was somewhat restricted. Tenderness was minimal
and spasm was absent, however some guarding was present. Sensation was intact and motor
exam revealed normal tone and no atrophy. SLR was limited to 40 degrees due to unspecified
pain. A follow‐up C&P exam 9 months after separation noted forward flexion of the lumbar
spine to 90 degrees and extension to 20 degrees. Muscle strength was normal in all muscles
tested.
The Board directs attention to its rating recommendation based on the above evidence.
Although not specifically noted in the NARSUM physical examination, “characteristic pain on
motion” supporting the PEB’s 10% rating under the 5295 code is reasonably conceded given the
CI’s history and symptoms of lifestyle limiting pain at the time of separation. The VA assigned a
10% rating under the 5292 code for “slight” or mild limitation of lumbar motion. The Board
agreed that elements of the 40% rating were not present on any of the cited examinations, and
further noted that there was no evidence of “incapacitating episodes” that would justify a
minimal rating under the 5293 code. Board members debated if any of the documented
examinations met the requirements for the 20% level under the 5292 code, but agreed that the
condition more nearly approximated the criteria for the 10% rating. The VA also assigned a
10% rating for right lower extremity radiculopathy, specifically radiating pain. The presence of
functional impairment with a direct impact on fitness is the crucial factor in the Board’s
decision to recommend any condition for rating as additionally unfitting. The lower extremity
pain components in this case have no functional implications. There was no motor impairment
that could be linked to any functional deficit or limitation of specific physical requirements. The
Board therefore concludes that additional disability rating for radiculopathy was not justified on
this basis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3
2 PD1200700
(reasonable doubt), the Board concluded that there was insufficient cause to recommend a
change in the PEB adjudication for the chronic 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 chronic LBP 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 recharacterization of
the CI’s disability and separation determination, as follows:
VASRD CODE RATING
5295
COMBINED
10%
10%
Chronic Low Back Pain
UNFITTING CONDITION
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120610, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXX, AR20130000045 (PD201200700)
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.
3 PD1200700
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl
XXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD1200700
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