RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01112
BRANCH OF SERVICE:  Army	BOARD DATE:  20140827
SEPARATION DATE:  20081027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (68M/Nutrition Care Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “herniated thoracic disc” and “herniated lumbar disc” by the MEB, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded seven other conditions.  The Informal PEB adjudicated “chronic low back pain (LBP) diagnosed as herniated thoracic and lumbar discs” as unfitting, rated at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

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

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 back condition is addressed below.  The cervical spine, left plica syndrome, right plica syndrome, tension headaches, astigmatism, myopia and depressive disorder, not otherwise specified conditions, identified as not unfitting by the PEB, were not requested for review and thus are not within the defined scope.  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 20080926	VA - (1.5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP diagnosed as Herniated Thoracic and Lumbar Disc	5237	10%	Lumbar Spine Degenerative Arthritis	5242	10%	20081212	
Other x 7 (Not in Scope)	Other x 6	20081212	
Rating:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20090511 (most proximate to date of separation)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

LBP Diagnosed as Herniated Thoracic and Lumbar Discs.  The CI first presented for medication care with complaints of LBP in March 2008.  At that time she reported a 4-year history of LBP after a fall.  Radiographic evaluations of the lumbar spine on 25 March 2008 were normal.  A diagnosis of lumbago (mechanical LBP) was rendered.  A magnetic resonance imaging (MRI) study obtained on 28 March 2008 demonstrated degenerative disc disease, right disc protrusion and an annular tear at L5-S1.  Right nerve root compression at the S1 nerve root was noted with right neural foramen narrowing (pressure on the right S1 nerve root).  A neurology consultation was executed due to reports of right leg pain, numbness and tingling.  An electromyogram study performed on 8 April 2008 demonstrated acute lumbar radiculopathy.  The CI was treated with pain medication and physical therapy without relief of her LBP.

The narrative summary (NARSUM) noted that the CI reported the onset of LBP while deployed in February 2004 to February 2005.  The physical examination was significant for bilateral paraspinous tenderness to palpation (TTP) with muscle spasms from T-8 to L5.  Her posture was bent forward 10 degrees.  Axial loading Waddell’s sign was present.  The examiner determined that the CI’s herniated thoracic and lumbar discs failed retention standards. The NARSUM documented an MRI of the thoracic spine which demonstrated a T7-T8 herniated disc.

At the VA Compensation and Pension examination (performed a months after separation), the CI reported a 4-year history of LBP.  The pain was described as an electrical and tearing sensation.  It was worsened with physical activity and relieved with rest and Tylenol.  She reported two incapacitating episodes (April 2008: 24 hours and September 2008: 3 days).  The physical examination showed no evidence of radiating pain on movement or muscle spasms.  There was TTP of the paraspinous muscles of the thoracolumbar spine.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP diagnosed as herniated thoracic and lumbar discs as unfitting with a disability rating of 10%, coded 5237 (lumbosacral strain).  The VA similarly rated the chronic LBP at 10%, coded 5242 (degenerative arthritis of the spine).  The Board considered whether criteria for higher than a 10% rating utilizing VASRD codes 5237, 5242 or 5243, intervertebral disc syndrome were met.  There was no evidence of a combined range-of-motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour for a 20% rating under the General Rating Formula for Diseases and Injuries of the Spine.  Although there was evidence of incapacitating episodes totaling four days within the 12-month period, this did not rise to the one week threshold for a 10% rating under VASRD code 5243.  The preponderance of the evidence did not support an unfitting determination for the right leg radiculopathy.

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.  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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130812, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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, AR20150006409 (PD201301112)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA