RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00133
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Combat Engineer, medically separated for “lumbar degenerative disc disease, without significant neurologic deficit,” with a disability rating of 10%.  

CI CONTENTION:  The applicant’s back injury is still causing serious issues.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 Physical Evaluation Board (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 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 PEB - 20070522	VARD – 20071231*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Disc Disease …	5299-5242	10%	Lumbar Degenerative Disc Disease	5243	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  ---%	
*VARD 20120501 awarded 5243 at 10% based on a clear and unmistakable error in the 20071231 VARD.  

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2004 after heavy lifting and was reinjured in December 2006 when picking up a turkey.  X-rays were normal.  Magnetic resonance imaging (MRI) studies in January 2006 showed degenerative disc disease with a mild bulge at L5-S1 with protrusion and broad based bulging annulus.  MRI studies in April 2007 showed degenerative disc disease with a mild disc bulge at L5-S1 and no impressive canal or foraminal stenosis.  The CI continued with back pain, limited back motion, and pain into his buttocks without evidence of weakness or peripheral nerve deficits.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for an MEB

During the physical therapy clinic appointment on 7 August 2006, 12 months prior to separation, the CI complained of low back pain.  This evaluation was noted to be for the MEB process.  The back examination is summarized in the chart above.  During the physical therapy evaluation on 26 February 2007, 6 months prior to separation, the CI had pain limited motion as charted above.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 22 March 2007, 5 months prior to separation, the CI reported several emergency room visits due to his back condition.  The physical exam showed mild bilateral tenderness at about the L5 level, “normal gait, heel and toe walk, tender gait,” normal spinal contour and negative straight leg testing for radiculopathy.  The MEB NARSUM examination on 20 April 2007, 4 months prior to separation, noted the CI was not taking any pain medication; however, inactivity kept the pain at a manageable level.  The examiner referenced the MEB examination and the physical therapy note from 26 February 2007 per above.  

There was no VA Compensation and Pension (C&P) examination associated with the original VA rating decision.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar degenerative disc disease condition 10% coded analogous to 5242 (degenerative arthritis of the spine), citing limitation of motion due to pain and tenderness.  The VA determined the lumbar degenerative disc disease condition was not service-connected, coded 5243 (intervertebral disc syndrome), based on the STR and MEB; citing no permanent residual or chronic disability in evidence.  The VARD in May 2012 rated the back condition at 10% retroactive to June 2007, citing a clear and unmistakable error in denying service-connection.  

The Board adjudged that the MEB examination and the February 2007 physical therapy examinations had the highest probative value for rating at separation.  The Board agreed that a 10% rating, but no higher, was justified for tenderness from the MEB examination or painful motion with limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM-referenced physical therapy examination.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  
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 lumbar degenerative disc disease condition.  

BOARD FINDINGS:  In the matter of the lumbar degenerative disc disease 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.  

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 20131227, 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 XXXXXXXXXXXXXXXXXX, AR20160005812 (PD201400133)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA