RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00261
BRANCH OF SERVICE:  Army	BOARD DATE:  20141120
Separation Date:  20070704

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B/Field Artillery) medically separated for a back condition.  The back 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lumbar degenerative disc disease (DDD)”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded 2 other conditions.  The Informal PEB (IPEB) adjudicated “chronic back pain due to L4-5 DDD without neurologic abnormality” as unfitting, rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB finding for the back and added right lower extremity radiculopathy as unfitting, rated at 10% for a total rating of 30%, and placed the CI on the Temporary Disability Retired List (TDRL).  A subsequent review of the FPEB proceedings by the US Army Physical Disability Agency (USAPDA), upheld the original IPEB’s findings of adjudicating “herniated disc L4-5 with DDD” condition as unfitting, rated at 20%.  The CI non-concurred with the USAPDA finding but made no further appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his 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 and 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 Recon FPEB – Dated 20070423	VA - (1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Disc L4-5 with DDD	5243	20%	Lumbar Spine Strain	5237	40%	20070829	
			Sciatic Nerve with L1-4 RL Radiculopathy	8520	20%	20070829	
Other x 2 (Not in Scope)	Other x 9	20070829	
Combined:  20%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20071023 (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.

Herniated Disc L4-5 with DDD Condition.  There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM (Degrees)	NARSUM ~12 Mos. Pre-Sep	PT ~5 Mos. Pre-Sep	VA C&P ~2 Mos. Post-Sep	
Flexion (90 Normal)	No ROMs	35 	30	
Combined (240)		135 	130	
Comment	Ambulates w/ cane; Pos. spasm & tenderness; Neg straight leg raise ; Normal strength, reflexes & sensation	Inclinometer & Goniometer used; Antalgic gait w/ cane; Pos. tenderness & muscle spasm; No abnormal spinal contour	Antalgic gait; Pos. painful motion & tenderness; No spasm; Pos. SLR on right; Pos. Deluca criteria; Normal strength; Pos. sensory deficit right leg;	
§4.71a Rating	20%	20%	40%	

The CI sustained a low back injury on 8 May 2004 while riding in the turret of a Humvee and “was jerked around” when the vehicle halted abruptly.  The CI was evaluated for chronic low back pain that radiated to the mid back with tingling in the right foot that worsened, as sharp pain, while running or climbing stairs.  There were physical exams findings of limited ROM at flexion, tenderness to palpation with straight leg raise (SLR) at 80 degrees on the left and 50 degrees on the right (normal 90 degrees).  The examiner prescribed a non-steroidal anti-inflammatory drug (NSAID), back class and stretching/strengthening exercises.  The lumbar spinal X-ray was normal.  The CI was evaluated and treated for chronic back pain by physical therapy from September 2005 to June 2006 for chronic stiffness, paresthesia, night pain and weakness in lower extremities.  A lumbar spine MRI demonstrated a disc protrusion at L4-5 directed centrally and to the left with foraminal compromise and possible nerve root impingement on the left at L4-5.  A thoracic spinal X-ray was normal.

The MEB narrative summary (NARSUM) examination (12 months prior to separation) documented constant sharp to dull back pain that radiated up and down his spine, muscle spasms, numbness and tingling in his right leg; symptoms are aggravated by sitting, standing, lifting, walking, bending, lying down and impact activities.  The NARSUM physical exam findings were summarized in the chart above.  The orthopedist documented severe lower back pain at the lumbosacral junction slightly to the right; with occasional pain radiation to the thigh.  The CI’s back condition was treated with spinal injections (with negative results), a TENS unit and aquatics therapy.  There was a statement in the NARSUM that the CI underwent a lumbar fusion on 27 October 2006; however, there was no corroboration of this procedure in the evidence for Board review.  The CI’s orthopedist provided a memorandum that recommended that the CI have priority housing for a one-level single family home or accommodations of a complete bathroom facility downstairs due to his limited ambulation ability and uses of a cane.

The VA Compensation and Pension (C&P) examination (approximately 2 months after separation), documented weakness in the his feet/knees, spasms and numbness in legs with a squeezing, sharp, cramping constant pain in the mid/lower back, that is worsened by physical activity, stress, sitting, standing that is relieved by rest.  There was no documentation of incapacitation periods.  The CI’s functional impairment was “inability to walk without the use of a cane”.  The VA C&P physical exam findings were summarized the above chart.

For a functional impairment that is tied to fitness; precedent requires that the Board is required to support a recommendation for additional rating for peripheral nerve 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.  There was no evidence of motor impairment.  Subsequently, because there was no evidence of functional impairment documented in the service treatment records, the Board cannot support a recommendation for additional rating for peripheral nerve impairment.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the herniated disc L4-5 with DDD condition as 5243 (intervertebral disc syndrome), rated at 20%.  The VA coded the lumbar spine strain condition as 5237 (lumbosacral or cervical strain) rated at 40%.  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 considered the higher probative value proximity to separation of the MEB NARSUM (12 months prior to separation), the PT examination (obtained 5 months prior to separation) and the VA C&P examination (performed 2 months after separation).  Although each of the three exams contained detailed comments, only the PT and VA’s C&P examinations contained complete ROM’s with detailed comments.  After a thorough discussion, the Board members adjudged that the MEB NARSUM exam more accurately described the CI’s condition at the time of separation, noting the fact that the PEB based their separation rating on this exam.  The Board members agreed that the pre-separation NARSUM examination was as comprehensive as the post-separation VA’s C&P exam and therefore had the higher probative value.  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 herniated disc L4-5 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 herniated disc L4-5 with DDD condition, 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 20121228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20150007073 (PD201400261)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA