RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00118
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20060602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (21C10, Bridge Crewmember) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “degenerative disc disease [DDD] L4-L5” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition, myopia (nearsightedness), judged to meet retention standards.  The Informal PEB (IPEB) adjudicated “chronic low back pain, due to L4-5 [DDD], without neurologic abnormalities” as unfitting, rated 0%. 

CI CONTENTION:  The CI makes no contentions.  His complete submission is at Exhibit A.

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 20060505	VA* (4.5 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5242	0%	DDD, L4-L5 w/ Mild R Radiculopathy	5242	10%	20061014	
Myopia	Not Unfitting	No VA Entry	20061014	
Other x 0 (Not in Scope)	Other x 0	20061014	
Combined:  0%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20061207 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an atraumatic onset of back pain in June 2004 (nearly 2 years pre-separation), which was associated with right lower extremity (RLE) radiation.  The symptoms persisted with conservative treatment; and, imaging (MRI) demonstrated DDD and minor disc bulging at two levels (“very small” at L3/4 with “minimal narrowing” both foramina, and “small” at L4/5 without nerve impingement).  A neurology consultant in November 2005 (6 months pre-separation) noted the persistence of RLE radiation without weakness or sensory complaints, recorded a thorough and normal neurologic exam (5/5 strength), and conducted electrophysiologic testing (EMG) which was interpreted as normal.  The pain could not be sufficiently managed with a protracted trial of conservative measures which included physical therapy (PT), epidural injections, and aggressive analgesic regimens.  Orthopedics did not judge the case to be surgical, and an MEB was initiated.  There are multiple STR entries documenting grossly normal (or nearly so) range-of-motion (ROM), although noting painful motion; and, none indicating significant limitation of ROM.  There are multiple normal neurologic exams in evidence and multiple notations of normal gait and spinal contour, with no conflicting entries; and, there is no STR documentation of periods of incapacitation.  The narrative summary (NARSUM) was conducted 7 February 2006 (3 months pre-separation) and documented pain rated “moderate and constant” without referencing any radicular symptoms; noting functional limitations of no lifting over 30 pounds, no running or marching, and no sitting or standing longer than a half hour.  The NARSUM physical examination recorded a normal gait with “lordosis noted” (but documenting the absence of spasm), and detailed normal neurologic findings (5/5 strength all groups).  The formal ROM measurements by the NARSUM examiner, and those by PT for the MEB, are charted below.

A VA Spine Compensation and Pension (C&P) examination was conducted 14 October 2006 (4 months post-separation), and was well corroborated by a General C&P from 12 days earlier.  The examiner documented constant pain rated 8/10 with proximal right lower extremity sensory symptoms, but no subjective weakness.  It was “aggravated by prolonged sitting and lifting,” but was not interfering with full time employment (machine operator).  The VA physical examination recorded a normal gait and contour, tenderness, and normal neurologic findings (5/5).  The ROM measurements referenced above are summarized in the following chart.

Thoracolumbar ROM	MEB PT
3½ Mo. Pre-Sep	NARSUM
3 Mo. Pre-Sep	VA C&P
4½ Mo. Post-Sep	
Flexion (90⁰ Normal)	75⁰	70⁰	75⁰	
Combined (240⁰)	215⁰	180⁰	200⁰	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under 5242 (degenerative arthritis of the spine) was supported by AR 635-40, but was not compliant with VASRD §4.71a spine criteria.  The VA’s 10% rating under the same code was consistent with §4.71a based on the C&P evidence.  All of the ROM evidence in this case is consistent with a §4.71a rating of 10%.  The NARSUM mention of lordosis raises the question of a 20% rating based on the §4.71a criterion of abnormal contour, but is not supported by the requisite “muscle spasm or guarding severe enough to result in ... abnormal spinal contour”; and, is countered by a preponderance of conflicting evidence.  There is no evidence of abnormal gait for a 20% rating, and no evidence of incapacitating episodes to support a higher rating under that formula.  Members also considered additional rating for the RLE radiculopathy, but the pain component is subsumed under the general spine rating IAW §4.71a (as per the PEB and the VA); and, there is clear evidence that there was no ratable sensory or motor impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the lumbar spine condition under code 5242.

Contended Myopia.   The STR is virtually silent regarding this condition.  There is a 2004 optometry note confirming 20/20 vision.  There is an optometry entry from February 2006 (3 months pre-separation) indicating MEB referral.  It documents that the CI was refracted, but yields no further information.  The NARSUM states simply, “Myopia, mild - meets retention standards, acquired while in receipt of base pay.”  The commander’s statement did not implicate any eyed condition or issues with vision, and the profile remained E1.  

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determinations that they were not unfitting.  All members agreed that there was no performance based evidence suggesting that the condition significantly interfered with duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the myopia condition; thus, it cannot be recommended for additional disability rating.  

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 was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended myopia condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
Myopia	Not Unfitting	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131223, 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 XXXXXXXXXXXXXXXXXXX, AR20160002065 (PD201400118)

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:

CF: 
(  ) DoD PDBR
(  ) DVA