RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00337
BRANCH OF SERVICE:  Army	BOARD DATE:  20150416
Separation Date:  20041210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Logistics Specialist) 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 “multiple level lumbar degenerative disc disease (DDD)” and “herniated lumbar disc,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB combined the two MEB conditions and adjudicated “chronic radiating low back pain (LBP)” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no 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 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:

Service IPEB – Dated 20041115	VA - (8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	20%	Herniated Lumbar Disc; DDD, Lumbar Spine	5237	40%	20050815	
Other x 0 (Not In Scope)	Other x 6	
Rating:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20081009 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Chronic Radiating LBP Condition.  During the CI’s tour in Iraq in April 2004, an explosive device detonated about 10 feet away from him and he was blown into the air and landed approximately 10 feet from his original spot.  He complained of LBP that radiated into his right leg.  He was treated in theater and then medically evacuated to Landstuhl, Germany.  A computerized tomography (CT) scan of the lumbar spine showed a right paracentral moderate to large disc protrusion L4-5.  The CI was sent to the continental United States where he underwent conservative treatment which included exercises, physical therapy and medication.  The LBP worsened and radiated into his legs, the right worse than the left.  The neurosurgeon ordered a lumbosacral magnetic resonance imaging (MRI) which demonstrated advanced DDD at L3-4, L4-5 and L5-S1.  The examiner discussed the surgical option of a laminectomy and discectomy, along with other alternatives of injections and intradiscal therapy; however the CI refused these interventions.  The MEB narrative summary exam nearly 2 months prior to separation documented that the CI had chronic LBP aggravated by all activities and there was associated right sciatic pain.  He was unable to perform activities that required bending, stooping, and lifting.  He was restricted from running, repetitive jumping and sitting or standing greater than 10-15 minutes.  The VA Compensation and Pension (C&P) exam approximately 9 months after separation, documented a guarded gait due to back pain and constant LBP with stiffening of the lower back with pain that radiated down into the left foot.  He was doing his job (information technology for a local school district) without limitations but reported increased pain with lifting and moving computers.  The CI reported missing 12 days of work due to LBP and daily pain; however, he denied flares and any incapacitating episodes.

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)	MEB ~2 Mos. Pre-Sep	VA C&P ~9 Mos. Post-Sep	
Flexion (90 Normal)	60 	40	
Combined (240)	180	170	
Comment	Normal gait; Pos. painful motion; Normal strength, sensation & reflexes; Neg. straight leg raising (SLR)	Normal gait; Pos. painful motion; Pos. tenderness to palpation & muscle spasm; Normal strength & sensation; Pos. Deluca criteria with 30 degrees of additional loss with repetition due to increased pain	
§4.71a Rating	20% (PEB 20%)	40% (VA 40%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic radiating LBP condition coded as 5243 (Intervertebral disc syndrome) and rated at 20%.  The VA coded the herniated lumbar disc; DDD, lumbar spine condition as 5237 (lumbosacral or cervical strain) and rated at 40% consistent with the additional loss of 30 degrees of flexion with repetitive testing.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s condition “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.”  A month prior to separation, the CI’s forward flexion of 60 degrees met the 20% rating criteria under the general rating formula.  The C&P measurements were 8 months after separation and likely represented post-separation worsening as the CI was working full-time in information technology for a local school district.  The CI denied any episodes of incapacitation that would allow for a rating based on incapacitation.  The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no evidence of a sensory or motor deficit.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating on this basis.  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 chronic radiating LBP 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 chronic radiating LBP 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 20140101, 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 XXXXXXXXXXXXXXXXXXXX, AR20150013275 (PD201400337)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA