RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00077
BRANCH OF SERVICE:  Army	BOARD DATE:  20150108
Separation Date:  20070312

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 2LT/O-1 (Student, Infantry Officer Basic Course) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lumbar spondylosis, with L4-5 HNP, L5-S1 anterolisthesis, and lumbago,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “lumbar spondylosis with degenerative disc disease (DDD)” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Before my discharge from the Army, I was having trouble walking, bending, twisting, etc.  Regular soldier duties were out of the question for me.  This was made very clear to doctors and superiors at the time.  Army documentation (not VA or Private) shows that I had a herniation in my disc at the L4-L5 level as well as sciatica that ran down both of my legs and pain in my hips.  The 10% rating given to me at the time was an extreme disappointment and injustice considering I was planning on making the military my career.  The rating was obviously given hastily and in the best interest of the Army rather than in the best interest of the soldier.

Since my discharge, I have had back surgery, multiple steroid/epidural shots, and continue to various medications.  Unfortunately, I have not had success in finding relief from my pain.  In fact, my pain has become worse and has traveled to my upper back/spine.  I have also had several episodes where my back spasmed to the point where my entire body was misaligned and became completely incapacitated.  Employment and family life has been difficult.  Employment has been difficult since my back has trouble in any work environment including sedentary environments.  My family life is difficult since the burden of my pain does not just weigh heavy on me but my wife and kids.  Please consider a change in my original rating to make the right this injustice.”

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 without neurologic abnormality 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 (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20090109	VA – 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spondylosis with DDD without Neurologic Abnormality	5237	10%	CI did not consent to the release of his VA records				
Other x 0		
Rating:  10%	Rating:  Unknown	

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board acknowledges the CI’s contention that his disability disposition was “obviously given hastily and in the best interest of the Army rather than in the best interest of the soldier.”  The Board acknowledges the CI’s opinion that an impropriety contributed to the adjudication of his disability.  It is noted for the record, that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the BCMR and/or the United States judiciary system.  Additionally, no VA records were available in evidence before the Board due to the CI’s lack of consent for their release.  The Board acknowledges the lack of relevant VA records could influence the outcome.

Lumbar Spondylosis with DDD Condition.  The CI developed low back pain (LBP) after a field training exercise in July 2006.  An epidural block performed in April 2006 was ineffective for pain relief.  A lumbar spine X-ray showed localized narrowing of the disc space between L4-5 with DDD.  A lumbar spine magnetic resonance imaging (MRI) demonstrated loss of disc height and a disc bulge (L3-5) and slight anterolisthesis (anterior vertebral slippage) at L5-S1.  The neurosurgeon noted LBP in the midline with numbness and tingling that radiated to the back of both thighs.  The physical exam findings were a mild antalgic gait with normal motor, sensation and reflexes.  Forward flexion was moderately limited due to mild LBP.  The neurosurgeon diagnosed lumbar spondylosis and disc degeneration and opined that surgery was unlikely to benefit the CI.  Several prior to separation examinations documented that the CI had significant muscle spasm of the lumbar spine with “flattening” of the lumbar area.  The MEB narrative summary (NARSUM) exam approximately 4 months prior to separation documented that the CI had daily pain rated at 5/10 that increased to 8/10 pain and spasm with activity.  The MEB NARSUM physical exam findings were normal forward flexion with a combined range-of-motion of 215 (240 is normal) with marked spasm, flattening and pain.  The orthopedic exam approximately 4 months after separation documented episodes of lower back pain rated at 6/10 that was aggravated by sitting for greater than 30 minutes.  During this time, he would also experience pain, numbness and tingling which were localized to the posterior hamstring and lateral calf muscles.  The CI tried and failed physical therapy, massage therapy, chiropractic treatment, acupuncture and one epidural injection.  The orthopedic physical exam findings were normal gait; “full” flexion, extension and rotation; painful motion, and normal strength, sensation and reflexes.  The CI did not consent to release of VA records, so there is no VA exam for consideration by the Board.  A repeat lumbar spine MRI was performed a year after the initial exam and showed mild DDD at L3-4, L4-5 and L5-S1 with mild spinal stenosis at L4-5.  The CI underwent two L5-S1 epidural steroid injections under fluoroscopy in August and September 2007.
Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the lumbar spondylosis with DDD as 5237 (lumbosacral strain) and rated it 10%.  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 Board agreed that the CI met the 20% rating criteria of “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar spondylosis with DDD 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 lumbar spondylosis with DDD condition, the Board unanimously recommends a disability rating of 20%, coded 5237 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	
Lumbar Spondylosis with Degenerative Disc Disease	5237	20%	
RATING	20%	

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, AR20150007632 (PD201400077)

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 20% 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