RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300826
BRANCH OF SERVICE:  Army	BOARD DATE:  20131206
Separation Date:  20081108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B/Cannon Crew Member) medically separated for degenerative arthritis of the lumbar spine.  The CI’s back pain began in March 2006 without any specific trauma noted.  He underwent physical therapy and epidural steroid injections (ESIs), neither offering any significant relief.  The lumbar spine 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 P2/L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar spine condition, characterized as “lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded obstructive sleep apnea and hypertension as medically acceptable.  The Informal PEB adjudicated degenerative arthritis of the lumbar spine with disc bulge at L4-L5 as unfitting rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was found unfit to continue my service.  I was not given the opportunity to re-class and continue my service.  The results were based off an MRI conducted a year prior.  I was counseled on the fact that because I had less than 20 years of service and less than 30 percent disability rating, I had no choice but to accept the findings.  I do not feel the rating was awarded fairly or accurate.  So I ask please to review my case and adjust findings.”

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.  In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the MH condition although he did not specifically contend for it on the DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting MH diagnoses in accordance with VASRD §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting lumbar spine condition is addressed below and, 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 (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20080917	VA - (2 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis Lumbar Spine	5242	10%	DDD Thoracolumbar Spine 	5242	10%	20080611	
OSA	Not Unfitting	Sleep Apnea	6847	50%	20080611	
Hypertension	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	Other x1	20080712	
Rating:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20081202 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that he was not given the opportunity to re-classify and continue his service.  The Board does not have the jurisdiction to offer remedy in reference to decisions of this nature.  That authority resides with the BCMR.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Degenerative Arthritis Lumbar Spine Condition.  The CI developed low back pain (LBP) in 2006 without a traumatic incident.  A magnetic resonance imagining (MRI) study performed in July 2006 demonstrated a central disc protrusion L4-5 and L5-S1.  The CI complained of LBP with radiation to the right leg to the ankle with numbness and tingling at times.  Lumbar spine films were normal.  The CI was evaluated by neurosurgery who noted right leg sciatica and chronic LBP with muscle spasm however the physical exam findings were normal.  The diagnosis was herniated intervertebral disc without nerve impingement with both pain medication and physical therapy (PT) prescribed.  From September 2006 through to October 2007 the CI underwent extensive PT.  He was evaluated by pain management in September 2007 for LBP and sacroiliac joint dysfunction and a failed response to non-steroidal anti-inflammatory drugs, muscle relaxers and narcotic medication.  The pain management consultant recommended three ESIs over the course of 2-week intervals.  There was no significant improvement in back pain after three steroid injections.  The commander’s statement noted that the CI’s bad back prohibited him from lifting heavy objects such as artillery rounds and the trails of the howitzer.  The VA Compensation and Pension (C&P) exam accomplished approximately 5 months prior to separation indicated that the CI had constant aching, sharp sticking and cramping pain that radiated to the right leg elicited by standing for long periods of time.  The examiner diagnosed degenerative disc disease of the lumbar spine.  The C&P exam findings are summarized in the chart below.  MEB narrative summary exam accomplished approximately 3 months prior to separation indicated that over time the intermittent pain in the right leg has decreased in frequency and intensity however the CI still had intermittent tingling sensation to the left lateral thigh and the LBP still remained with intermittent flares.  The LBP flares would last approximately 1 to 2 hours every 1 to 2 weeks precipitated by lifting, twisting and stooping or bending with rest alleviating the pain.  The MEB physical exam findings are summarized in the chart below.

There were two 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.

Thoracolumbar ROM (Degrees)	VA C&P ~5.5 Mos. Pre-Sep	MEB ~3 Mos. Pre-Sep	
Flexion (90 Normal)	75	80	
Extension (30)	25	30	
Combined (240)	200	235	
Comment	Pos. pain on motion; No muscle spasm; Pos. Deluca criteria; Pos. tenderness L4-S1 paraspinal muscles bilaterally; Neg. straight leg raise bilaterally; Normal gait, motor & sensory function	No muscle spasm or atrophy; all ROM with pain; Slight tenderness right sacroiliac region; Normal gait, sensory and reflexes	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and the VA chose the same disability code 5242 (degenerative arthritis of the spine) and both rated at 10%.  The PEB rating included consideration of VASRD principles §4.10 (functional impairment), §4.40 (functional loss), §4.45 (the joints) and §4.59 (painful motion).  The general rating formula for diseases and injuries of the spine 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.”  The CI had ROM with pain limited motion and spinal tenderness on both the MEB and C&P exams.  All exams proximate to separation met the 10% rating criteria for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  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 degenerative arthritis lumbar spine condition.

Contended PEB Conditions:  The Board noted that no MH condition was referred into the DES.  No MH diagnosis was discussed throughout the service treatment record (STR).  No MH condition was profiled or implicated in the commander’s statement, or was judged to fail retention standards.  The Board adjudged this to constitute a de facto determination by medical providers that no MH condition existed.  The Board determined that there was no MH diagnosis discussed throughout the STR and therefore no MH diagnosis was changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

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 degenerative arthritis lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the DES process, the applicant’s case file was reviewed and the Board agrees that this CI had no MH condition referred into the DES process.  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:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Arthritis Lumbar Spine	5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-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, AR20140003539 (PD201300826)

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