RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00071
BRANCH OF SERVICE:  Army	BOARD DATE:  20150206
SEPARATION DATE:  20070110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-7 (Supply Sergeant), medically separated for back pain.  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 P3/L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “degenerative disc disease at L5/S1,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (obstructive sleep apnea) for PEB adjudication.  The Informal PEB adjudicated his back condition as unfitting and rated it at 0%, with likely application of AR 635-40.  The sleep apnea was determined to be not unfitting.  The CI appealed to the Formal PEB, which affirmed the PEB finding and rating.  The CI was released from active duty and transferred to the Retired Reserve List awaiting pay at age 60 pursuant to his request.

CI CONTENTION:  “I believed and still believe, that one cannot render an “unfit rating” at 0% where we had, and still have, a service member who, among other “pending claims”, had 2 back surgeries while serving my country to be “unfit for duty” and still be discharged w/a 0 rating into the VA’s Medical Arena.”

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 FPEB – Dated 20061129	VA - (4 Months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion…	5241	0%	Degenerative Disc Disease, Lumbar Spine…	5243-5242	Deferred*	20070411	
Other x 1 (Not In Scope)	Other x 9	
Combined:  0%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20080123 (most proximate to date of separation [DOS]).   *VARD dated 20080421 rated the back at 10% effective 20070111 based on exam of 20080220; with increase to 20% based on exam of 20091027

ANALYSIS SUMMARY:

Back Condition.  The record and narrative summary (NARSUM) noted the CI injured his lower back in 2004 and underwent lumbar spine fusion (L5/S1) in April 2005, with a second surgery in March 2006.  He continued to have pain interfering with military requirements.  At the MEB and NARSUM exams in June 2006 (5 months prior to separation), the CI reported continued lower back pain and lifting restrictions.  There were no radicular symptoms and no loss of bowel or bladder function.  Those physical exams noted decreased forward flexion to 70 degrees (normal 90 degrees) and combined range-of-motion (ROM) of 155 degrees (normal 240 degrees).  Gait was normal with no motor, sensory or reflex deficits.

At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported a similar history as above, with complaints of flares without radiating symptoms.  He used a back brace every other day and episodic narcotic pain medication.  He did not lose work time and had no incapacitating episodes.  On exam he had a normal gait with “mild positive Waddell testing for nonorganic signs of pain ….”  There was spine tenderness and forward flexion to 90 degrees (normal) and combined ROM of 230 degrees (normal 240 degrees) with pain on extension testing.  On repetitive testing he had signs of fatigability without changes in ROM.  The examiner stated that “It is my estimate during acute flare-ups and repetitive use of his lower back, the total function loss will be equated to lumbar spine flexion limited to 60 degrees, but I cannot give the exact degree because it is impossible to do that. …have only mild functional impairment (during flares, or) after repetitive use of the lower back ….”

A VA C&P exam performed 13 months after separation documented a normal gait with normal lower extremity sensory, motor and reflex exams.  Radicular testing (Lasegue sign) was negative.  ROM was painful with forward flexion to 80 degrees (normal 90 degrees) and combined 195 degrees (normal 240 degrees).  The examiner stated that the CI would have an estimated “additional functional limitation of motion of his lumbosacral spine during flare-up and repetitive use limited to 0-70 degrees during flare-up due to pain.”  The VA rated this exam at 10%.  Remote VA exam dated 27 October 2007 noted more limited ROMs (flexion to 60 degrees with DeLuca decrease to 50 degrees) and was rated at 20%.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB disability description (for their 5241, 0% rating) stated:  “No tenderness or spasm on exam; range of motion moderately limited by pain.  Rated for no mechanical loss of motion.”  This was likely application to AR 635-40 (B-29) as cited in the PEB reply to rebuttal memo dated 11 December 2006.  Independent rating of the MEB exam would be 10% for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The Board deliberated on the probative values of the VA exams 4 and 13 months after separation.  Although the initial VA exam may have supported a 20% rating for estimated functional loss with flares and repetition (DeLuca), the examiner stated he could not give an exact degree limit and that additional functional impairment was estimated as “only mild.”  Subsequent VA exam was more similar to the exam and did not approach the 20% rating criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the spinal fusion 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.  As discussed above, PEB reliance on AR 635-40 for rating the back condition was likely operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the spinal fusion condition, the Board unanimously recommends a disability rating of 10%, coded 5241 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Spinal Fusion	5241	10% 	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131226, 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, AR20150010391 (PD201400071)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA