RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00262
BRANCH OF SERVICE:  Army	BOARD DATE:  20150116
SEPARATION DATE:  20071220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Tracked Vehicle Mechanic) medically separated for a low back disability.  The condition 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 “lumbar spondylosis” and “lumbar disc degeneration” were forwarded to the Physical Evaluation Board (PEB) as “medically unacceptable” IAW AR 40-501.  The MEB also identified and forwarded three other conditions as medically acceptable, for further consideration by the PEB.  The Informal PEB adjudicated “degenerative disc disease, lumbar region…no motor neurologic deficits” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “see item 12.  I was awarded 20% rating from VA for same back condition, while also given a 10% rating for secondary issue of sciatic nerve damage related to my back condition.  These awards were given in early timeframe of my separation from service that I believe my back condition was not stabilized sufficiently at time of separation and was of worse condition than rated by the Army, which failed to consider this and would have resulted in a more significant rating.”  [sic]

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 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:

IPEB – Dated 20071101	VA* (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease, Lumbar Region…No Motor Neurologic Deficits	5299-5242	10%	Degenerative Arthritis Of The Lumbar Spine	5242	10%*	20080312	
Other x 3 (Not In Scope)	Other x 4 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20080822 (most proximate to date of separation (DOS)).  VARD 20100212 increased DC 5242 to 20% and awarded DC 5243-8620 (IVDS, Right Sciatic Nerve associated with Degenerative Arthritis of Lumbar Spine) at 10%, both effective 20090916.

ANALYSIS SUMMARY.

Lumbar Spine Condition.  According to the narrative summary (NARSUM) dated 23 October 2007, the CI first experienced mild back pain in 1998 while in initial training.  He made a few visits to sick call and was treated with non-steroidal medication.  Service treatment record of August 2002 noted he reported lower back pain rated 7/10, while attempting to “right” a large tool box.  A diagnosis of lumbar muscle strain was rendered.  He deployed to Iraq in May 2003 and pain became more frequent.  After redeployment in August 2003, he presented to sick call in September 2003 and received a temporary U3L3 profile for back pain.  X-rays were negative.  Restrictions included running, marching, climbing, no lifting, pulling heavy objects, and no prolonged standing.  The pain was manageable until August 2004 when he experienced another exacerbation.  At sick call, CI reported pain that radiated to both buttocks with decreased knee jerks.  He eventually received a diagnosis of sciatica.  Magnetic resonance imaging (MRI) in October 2004 showed mild L1-2 and L2-3 degenerated discs, a small right lateral L5-S1 disc herniation  without evident nerve root impingement, and mild facet degeneration (wearing down of the small joints of the spine).  Despite the pain, he deployed to Kuwait in November 2004.  He redeployed in November 2005 and reported constant, dull, aching pain rated that radiated to the lower thigh.  Repeat MRI dated 12 May 2006 was mostly unchanged from previous MRI but showed a L2-3 tear and facet degeneration worst at L4-5.  He deployed to Korea with persisting pain and by October 2006, he was recommended for a MOS Medical Retention Board.  He was unable to perform his duties and returned to the US in July 2007.  MRI in August 2007 revealed mild straightening of the lumbar curvature, disc bulge at L2-3 causing mild spinal canal stenosis and hypertrophy at L4-5 causing minimal narrowing of bilateral neural foramina.  The commander’s statement dated 13 August 2007 noted he had spent his entire tour in Korea on a T-3 profile, unable to wear heavy equipment or perform his duties.

The NARSUM exam, noted the CI had back pain that was constant and exacerbated by activity.  He could not run, wear heavy equipment, lift or carry a load.  The pain kept him awake at night despite pain medication.  Physical exam of the back revealed tenderness to palpation along lumbar paraspinous muscles, left worse than right, with mild spasm but no guarding.  Range-of-motion (ROM) was consistent with physical therapy (PT) measurements, and lower extremity strength was 5/5 but less than full effort due to back pain.  Deep tendon reflexes and sensation were normal.  Heel, toe and tandem walk (gait) were normal.  Straight leg raise testing (for radiculopathy) was negative.  The PT MEB ROM exam on 15 August 2007, 4 months prior to separation, noted the CI reported back pain was 6/10.  The exam revealed no local tenderness, muscle spasm, guarding, abnormal gait, or abnormal spinal contour.  An inclinometer (versus a goniometer) was used to measure forward flexion, extension, and lateral flexion measurements.  ROM documented forward flexion of 90 degrees (normal 90 degrees) and combined ROM of 215 degrees (normal 240 degrees) with limitations due to pain.

At the VA Compensation and Pension (C&P) exam, dated 12 March 2008, performed approximately 3 months after separation, the CI reported pain 3 times per day and each time lasts for an hour.  The pain was burning, aching, sharp and cramping and traveled down to the right buttock.  The CI rated the pain at 8/10, was elicited by physical activity, and radiated to the right buttock not past the knee.  Medication allowed him to function through the pain.  He was not receiving any treatment and stated his condition had not resulted in any incapacitation.  Physical exam showed normal gait and posture.  The feet did not show signs of abnormal weight bearing, breakdown, or calluses.  He did not require an assistive devise to walk.  Exam of thoracolumbar spine revealed no evidence of radiating pain on movement.  Muscle spasm and tenderness were absent.  There was negative straight leg raising bilaterally.  There was no ankylosis.  Joint function was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  Spinal curvature was normal with no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  Neurological exam of the lower extremities was normal.  ROM demonstrated normal ROM in flexion, extension, lateral flexion bilaterally, and rotation bilaterally.  Pain occurred at the point of full motion.  The VARD assigned a disability rating of 10% for painful motion.

VA exam over 20 months after separation documented lumbar tenderness and guarding with an abnormal gait and positive straight leg raise on both legs.  The right leg had sensory deficits.  The VA rated this exam at 20% (5242) and added a right sciatic nerve rating of 10% (5243-8620) both effective September 2009.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5299-5242 while the VA rated the condition 10%, coded 5242.  There were no periods of physician prescribed bed rest for any rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (code 5243).  The remote VA exam was adjudged post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  The MEB and C&P exams documented pain-limited or painful motion (IAW VASRD §4.59) to warrant a minimum of a 10% rating, and there was no exam proximate to separation that documented limitation of ROM to warrant higher than a 10% 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 degenerative disk disease.

The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI had symptoms of intermittent radiating pain to the right buttock.  However, there were no complaints of muscle problems, and objective peripheral nerve, muscle strength, and reflex testing was normal.  Pain (whether or not it radiates), stiffness, or aching is rated under the general formula for the spine and was considered in the spine rating above.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance.  The Board therefore concluded that no peripheral nerve (radiculopathy) condition could 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.  In the matter of the lumbar degenerative disc 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.
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 20131213, 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, AR20150010446 (PD201400262)

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