RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00571
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20071227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “thoracic disc degeneration” and “lumbar spondylosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (internal hemorrhoids, myalgia and myositis left chest wall, and generalized anxiety disorder) as meeting retention standards for PEB adjudication.  The Informal PEB combined the two MEB back conditions and adjudicated “thoracolumbar degenerative disc disease (DDD) w/o motor neurologic deficits” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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 20071120	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar DDD w/o Motor Neurologic Deficits	5299-5242	10%	T8-T11 Disc Protrusion with Focal Cord Flattening And L4-5 Lumbar Joint Hypertrophy…	5237	10%	20080407	
Other MEB/PEB Conditions x 3 (Not In Scope)	Other x 4	
RATING:  10%	RATING: 10%	
*Derived from VA Rating Decision (VARD) dated 20090105 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Condition w/o Neurologic Deficits.  Absent trauma, the CI developed low back pain and received conservative treatment for years without resolution of symptoms.  Plain X-rays remained normal and a magnetic resonance image performed in July 2007 revealed degenerative changes in the lumbar spine and mild disc bulging of the lumbosacral spine.  A complete orthopedic evaluation (conducted a month prior to the MEB) revealed a normal musculoskeletal examination excepting tenderness of the lumbar spine.  The CI was permanently profiled on 28 September 2007 and sent for a MEB.   The commander’s statement recommended that the CI be released from active duty due to a status of being non-deployable.  At the MEB narrative summary examination (9 November 2007; approximately 6 weeks prior to separation) the CI reported the inability to sit, stand, or walk for a prolonged period of time due to back pain.  His physical examination (PE) noted low back tenderness with spasms as well as decreased painful motion.  An abnormal gait was not present.  

At the VA Compensation and Pension (C&P) examination (7 April 2008; 3 months after separation), the CI reported constant upper back pain with spasms worsened with prolonged standing or sitting.  He denied any radicular pain component or other associated symptoms.  The PE was clinically detailed and completely normal.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	ORTHO ~3 Mo. Pre-Sep	MEB ~1 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	‘normal’	(45) 40/50/40	90	
Extension (30)		(10) 10/10/15	30	
R Lat Flexion (30)		(10) 10/15/10	30	
L Lat Flexion (30)		(20) 20/20/20	30	
R Rotation (30)		(30) 35/45/45	30	
L Rotation (30)		(30) 45/45/45	30	
Combined (240)	240	145	240	
Comment	tenderness	(+) spasm; tenderness; normal gait	-	
§4.71a Rating	10%	20%	0%	

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated 10% respectively and applied similar codes of 5242 (degenerative arthritis) and 5237 (lumbosacral strain).  Board members first considered exam probative value (PV) in this case acknowledging a significant difference in ROM values within 3 months either side of Service separation.  Although the MEB was nearest to the DOS, all Board members agreed that the single MEB examination was not at all consistent with the totality of physical evidence throughout the entire STR; and therefore a greater PV was apportioned to the orthopedic, VA, and Service file examinations.  After due deliberation under the determined PV parameters and considering all of the evidence with mindfulness of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back 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 low back 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 20131221, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160003092 (PD201400571)

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