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AF | PDBR | CY2013 | PD-2013-02494
Original file (PD-2013-02494.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02494
BRANCH OF SERVICE: Army  BOARD DATE: 20140627
SEPARATION DATE: 20051005


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (25U/Signal Support Systems Specialist) medically separated for chronic low back pain (LBP), secondary to herniated nucleus pulpous (HNP) L4-L5, with tenderness to palpation (TTP) in para spiral region, without neurologic abnormality (chronic low back pain [CLBP]). The CLBP 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 CLBP condition was characterized as “medically unacceptable” and was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic low back pain, secondary to herniated nucleus pulpous L4-L5, with tenderness to palpation in para spiral region, without neurologic abnormality” as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “The diagnosis was said to be inoperable and would over time become progressively worse and has done so, making it difficult to work as of late. Multiple trips to the doctor for the pain and discomfort.”


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 those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting CLBP condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20050525
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain, Secondary to Herniated Nucleus Pulposus L4-L5, w/Tenderness to Palpation in Para Spiral Region, without Neurologic Abnormality 5243 10% Degenerative Disc Disease with Mechanical Low Back Pain (claimed as low back pain) 5243 10% STR
No Other Condition in Scope
 Other x 3 (Not in Scope)
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 51107 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: No apparent VA Compensation and Pension (C&P) examination was performed in this case. The VA rated the back condition based on the STRs and the DD Form 2807 and narrative summary (NARSUM) examinations of 26 January 2005 and 16 February 2005 respectively. Nevertheless, the Board made extensive effort to locate this document, but was unable to do so. The Board agreed that further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.

Chronic Low Back Pain. The NARSUM notes the CI developed progressive LBP after a motor vehicle accident in 1999. Special back X-rays (magnetic resonance imaging [MRI]) in 2001 revealed multiple bulging discs in the lower spine area without nerve impingement. On examination in January 2002, range-of-motion (ROM) of the lower back was reported as “full.” A repeat MRI in May 2004 was unchanged from the study of 2002, excepting development of a stable “annular” tear without nerve impingement in the lower spine. On an orthopedic evaluation performed on 15 June 2004, ROM of the back was 80 degrees with pain (normal: 90 degrees). Motor strength and reflexes in the legs were normal. The CI was deemed not to be a candidate for surgery. At the MEB NARSUM evaluation on 16 February 2005, 8 months prior to separation, the CI reported back pain with activity with radiation to both legs to the hamstring area. The CI further expressed subjective sensation of weakness in both lower legs. The MEB physical exam noted the CI to be in no distress with normal gait. TTP in the lower back area was recorded. Forward flexion of the back was 80 degrees. Motor, sensation and reflex exams were normal. No apparent VA C&P exam was performed as noted above.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA rated the back condition 10% coded 5243 (disc syndrome) IAW §4.71a. citing forward flexion of the back of 80 degrees. Under this code, a rating of 10% requires forward flexion of the lumbar spine greater than 60 degrees but not greater than 85 degrees. The 20% rating requires flexion of the lumbar spine greater than 30% but not greater than 60%. The 40% rating requires flexion of the lumbar spine of 30% or less. The Board unanimously agreed that the preponderance of evidence in records supports a 10% rating, but no higher, for the lower back for reduced ROM from pain. The Board considered a rating under code 5243 (incapacitating episodes/intervertebral disc syndrome). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician. The Board agreed that no rating could be recommended under this code. The Board considered a rating IAW §4.123 (neuritis, peripheral nerve). The Board concluded there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating, IAW §4.71a. The Board found no other appropriate codes for consideration. 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 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 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 20131024, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002935 (PD201302494)

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

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