RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-00530
BRANCH OF SERVICE:  Army	                              SEPARATION DATE:  20060714

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Multichannel Transmitter Operator Maintainer, medically separated for “Degenerative Disc Disease…,” with a disability rating of 10%.   

CI CONTENTION:  The CI contended that his conditions have worsened making daily life difficult.  The CI’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 Physical Evaluation Board (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 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 – Dated 20060426	VARD - 2070516	
Condition	Code	Rating	Condition	Code	Rating	Exam	
[Lumbar] Degenerative Disc Disease…	5243	10%	Herniated L4-5 Discs…	5010-5241	40%	20070425	
Adjustment Disorder… 	Not Unfitting	Adjustment Disorder with Depressed Mood	9440	50%	20070625	
Migraine Headaches	Not Unfitting	No VA placement 	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Degenerative Disc Disease (Lumbar).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lumbar degenerative disc disease condition began in March 2004 after a work-related accident.  Because of ongoing pain, a microscopic laser discectomy was performed in March 2005, and was complicated by a post-operative wound infection which responded to surgical drainage and antibiotics.  Radiographic studies in May 2005 showed some L4-5 disc degeneration, a slight disc bulge and some narrowing of the left neuroforamen.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “degenerative disc disease” for PEB adjudication.  A neurosurgical examination on 15 July 2005 (12 months prior to separation) found thoracolumbar flexion of 60 degrees (normal 90 degrees) and combined range of motion (ROM) of 210 degrees (normal 240 degrees).  Spine tenderness and muscle spasm were absent.  At the MEB examination (recorded on DD Forms 2807 and 2808) on 17 November 2005, 8 months prior to separation, the CI reported constant, throbbing back pain that radiated to his hips and thighs.  He experienced occasional numbness and tingling in the toes.  Pain was aggravated by prolonged sitting or standing, and by yard work, bending or lifting.  He could not run.  Examination showed lumbosacral spine tenderness and painful motion.  Motion was limited in all directions, but was not measured.  Lower extremity neurologic findings were normal.  At the MEB physical therapy (PT) evaluation on 29 January 2006 (6 months prior to separation) the CI complained of 9/10 pain across the lower back that was constant.  Examination showed ROM that was limited by pain.  Flexion was 50 degrees and combined ROM was 130 degrees.  The MEB NARSUM examination on 13 February 2006 (5 months prior to separation) noted paraspinal muscle spasm, but was silent regarding gait and spinal contour.  Lower extremity neurologic findings were normal.  

At the time of the VA Compensation and Pension (C&P) exam on 25 April 2007 (9 months after separation) the CI reported continued pain in the lumbar back radiating into both hips and buttocks, but not down his legs.  His pain was more significant on the left side.  He was unable to lift any significant weight, but was working as an electrical worker apprentice.  He reported two incapacitating episodes during the previous 12 months.  Physical examination noted a normal posture but that he walked “slowly holding his low back stiffly.”  Painful motion, muscle tenderness and spasm were present. Thoracolumbar flexion was 20 degrees and combined ROM was 110 degrees.  There were no neurologic abnormalities. There was no change in ROM after three repetitions.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the degenerative disc disease condition 10% coded 5243 (intervertebral disc syndrome), citing painful motion, tenderness and muscle spasm.  The VA assigned a 40% rating under a combination 5010-5242 code (traumatic arthritis and degenerative arthritis of the spine) based on the VA C&P examination 9 months after separation; and cited limitation of forward flexion at 30 degrees or less as the rationale.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported by the neurosurgical examiner 12 months prior to separation and by the MEB PT examination 6 months prior to separation.  However, the VA’s rating was appropriate based on the available ROM data (i.e. 40% for flexion not greater than 30 degrees).  Because the MEB PT exam was most proximal to the time of separation, it was assigned preponderant probative value in the Board’s deliberations.  Board members therefore concluded that a 20% rating most accurately depicted the condition at the time of separation.

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant a higher rating under the alternate VASRD formula (for IVDS).  The Board finally considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI complained of radiating pain to his hips and buttocks, and of intermittent toe numbness.  However, examinations recorded normal neurologic findings. There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the degenerative lumbar spine condition, coded 5243. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headache and adjustment disorder conditions were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  A physician’s memorandum to the PEB 4 months prior to separation reported use of abortive medication for migraine that “works well.”  It was also stated, “He does not have episodes of headaches that cause incapacitation.”  The migraine headache condition was not profiled or implicated in the commander’s statement, and was not judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance.  A psychiatric memorandum 3 months prior to separation confirmed a diagnosis of adjustment disorder with anxiety and depressed mood, and stated there was no psychiatric condition that rendered the CI non-deployable.  The adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting. 

After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the adjustment disorder or the migraine headache conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the degenerative disc disease of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with anxiety and depressed mood and migraine headaches conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131224, 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, AR20160008269 (PD201400530)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA