RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00525
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for a lumbar back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbar degenerative disc disease” and “thoracic spine injury, compression fracture deformity of T8,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain due to lumbar degenerative disc disease” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  He was given a higher rating for his condition by the VA.  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 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 20070508	VA* - (~1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	10%	Degenerative Disc…Lumbar Spine	5243	10%	20070709	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 9 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20070813 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation.

Chronic Back Pain Condition.  The CI sustained compression fracture injuries to vertebral bodies L1 and T8 (with loss of 50% of the T8 height) in 2001.  Although the fractures healed and he was able to continue his MOS duties, progressive lower back pain did not respond adequately to conservative treatment measures.  There was no associated surgical indication.  Radiographic imaging studies showed degenerative changes of the lower thoracic spine, and degenerative disc disease with disc bulging at L4-5 and L5-S1.

At the MEB exam on 23 February 2007 (3 months prior to separation) the CI reported occasional numbness and tingling in the legs and feet.  Physical examination noted pain-limited range-of-motion (ROM) of the thoracolumbar spine.  Gait was normal and lower extremity neurologic findings were also normal.  ROM measurements performed by physical therapy on 2 March 2007 showed flexion of 70 degrees (normal 90 degrees) and combined ROM of 205 degrees (normal 240 degrees) after three repetitions.  ROM was limited by pain.  The narrative summary on 12 March 2007 reported low back pain that worsened with activity.  Examination showed lumbar and thoracic spine muscle tenderness and painful motion.  Lower extremity neurologic findings were normal.

At the VA Compensation and Pension exam performed a month after separation, the CI reported intermittent aching of the mid and lower back that was exacerbated by prolonged standing, walking or sitting.  Occasional shooting pains into the legs were brief (seconds).  He denied use of a cane or brace.  Examination showed a normal gait and no muscle spasm or guarding.  Thoracolumbar flexion was 70 degrees and combined ROM was 165 degrees.  Pain occurred at extremes of motion, and there was no additional loss of motion after three repetitions.  Lower extremity neurologic findings were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating coded analogously to 5242 (degenerative arthritis of the spine) and cited ROM limited by pain, with localized tenderness, as the rationale.  The VA also rated at 10% using the 5243 code (intervertebral disc syndrome) for forward flexion of 70 degrees.  Board members agreed that a 10% rating, but no higher, was justified based on limitation of motion (flexion greater than 60 degrees but not greater than 85 degrees, and combined ROM greater than 120 degrees but not greater than 235 degrees).  A 10% rating was also warranted for loss of 50% of the T8 vertebral body height.  There was no 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.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find evidence which would support a minimal rating under that formula.  

The Board finally considered if additional disability was justified for lower extremity radiculopathy.  The CI complained of intermittent lower extremity numbness and radiating pain.  Due to the absence of objective neurologic findings, the VA did not service-connect radiculopathy.  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 is no evidence in this case of functional impairment attributable to peripheral neuropathy.  While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Any lower extremity numbness was transient and was associated with no functional impairment.  The Board concluded therefore that this condition could not be recommended for additional disability 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 chronic back pain 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 back pain due to 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.

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 20131219 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 XXXXXXXXXXXXXXXXXXXXXXX, AR20160000256 (PD201400525)

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