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AF | PDBR | CY2013 | PD-2013-02748
Original file (PD-2013-02748.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02748
BRANCH OF SERVICE: Army  BOARD DATE: 20150116
SEPARATION DATE: 20070405


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Combat Infantryman) medically separated for chronic low back pain (LBP). 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 lower back pain, characterized as “lumbar spine degenerative disc disease,” 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” as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “was treated for PTSD, but never moved forward or changed.”


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 :

Service IPEB – Dated 20070314
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5243 10% Low Back Strain With Disk Herniation 5237 20% 20070508
Other x 0 (Not in Scope)
 Other x 4 20070508
RATING: 10%
 RATING: 20%
Derived from VA Rating Decision (VA RD ) dated 20090107 ( most proximate to date of separation [ DOS ] )





ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. Review of the service treatment record showed that LBP began in approximately January 2005 without specific injury. Ongoing back and right lower extremity pain was evaluated with imaging studies in December 2005, which showed lumbar degenerative disc disease and disc bulging. Electrophysiologic studies showed evidence of radiculopathy of right leg muscles supplied by L5 and S1 nerve roots. A right L5-S1 discectomy was subsequently performed on 26 July 2006. At a physical therapy (PT) evaluation on 16 October 2006 (3 months after surgery and 6 months prior to separation), the CI complained of pain that was aggravated by sitting longer than 25 minutes, standing for 10-15 minutes or bending. Episodes of sharp pain occurred in the right lower extremity. Exam showed a normal gait and “decreased lumbar curve.” Muscle spasm was not mentioned. The narrative summary on 15 December 2006 reported that the back pain had improved overall since surgery, but the back pain and associated right lower extremity pain still interfered with duty performance. Physical exam showed lumbar tenderness and intact gait. Lower extremity muscle strength was normal. The MEB physical exam on 15 December 2006 reported lumbar flexion of 70 degrees, but other range-of-motion (ROM) parameters were not reported.

At the VA Compensation and Pension (C&P) exam on 8 May 2007 (a month after separation) the CI reported his back pain began in December 2003. Currently, his pain was constant and radiated to both legs. He took over-the-counter pain medication, which did not help. He denied incapacitating episodes during the previous 12 months. Examination showed a normal gait, but spinal contour was not mentioned. However, paraspinal muscle spasm was present. Lower extremity muscle strength was normal.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)		 PT ~6 Mo s . Pre-Sep VA C&P ~ 1 Mo. Post-Sep
Flexion (90 Normal) 60 70
Combined (240) 155 190
Comment +Painful motion +Painful motion
§4.71a Rating 20% (PEB 10%) 10 % (VA 20%)

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under code 5243 (intervertebral disc syndrome), while the VA rated the condition at 20% using code 5237 (lumbosacral strain). Although the PEB cited decreased ROM as the rationale for rating, the flexion of 60 degrees specified by the PEB justified a 20% rating (flexion greater than 30 degrees but not greater than 60 degrees). The C&P exam warranted a 10% rating based on flexion or combined ROM. In deliberating the probative value of these examinations, the Board considered that the PT exam was only 3 months after surgery. The C&P exam was closer to the time of separation, and reported a flexion measurement (70 degrees) that was corroborated by the MEB examiner. Furthermore, given the time elapsed since surgery it was more reflective of a healed state, and was therefore assigned preponderant probative value by the Board. As previously noted, this exam warranted a 10% rating. Although muscle spasm was reported by the C&P examiner, the requisite link to abnormal gait or spinal contour was not present; therefore the next higher 20% rating was not justified on this basis. It was also agreed that a higher rating could not be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes.

Finally, the Board considered if the right lower extremity radiculopathy warranted an additional disability rating. 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. 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).” Examinations noted normal lower extremity muscle strength. Thus, there is no evidence in this case of functional impairment attributable to peripheral neuropathy. The Board therefore concludes that 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 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. 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131222, 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, AR20150010436 (PD201302748)


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

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