RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00598
BRANCH OF SERVICE:  Army	BOARD DATE:  20150130
SEPARATION DATE:  20071214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-5 (Food Service Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent P3U2L3S2 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “chronic low back pain with radicular symptoms to legs status post fusion” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded eight other conditions (obstructive sleep apnea, left shoulder pain due to bursitis, chronic allergic rhinitis, gastroesophageal reflux disease, anxiety, depression, headaches and alcohol abuse).  The Informal PEB adjudicated “lumbar fusion L4-5 with persistent low back pain…no evidence of motor neurologic deficit” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and AR 635-40 paragraph B-29.  The remaining conditions were determined to be not unfitting except alcohol abuse which was determined to be a condition not constituting a physical disability.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Due to continued distress without being able to directly fix them.  Working a full time job will be extremely difficult due to back not getting better and constant migraines.”

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 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 IPEB – Dated 20071019	VA - (~3 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Fusion L4-5 	5241	10%	DDD Lumbar Spine s/p Lumbar Fusion L4-5	5243	40%	20080320	
			Radiculopathy, LLE	8520	10%	20080320	
Headaches	Not Unfitting	Migraines	8100	30%	20080320	
Other x 7 (Not in Scope)	Other x 9	
Rating:  10%	Combined Rating:  90%	
Derived from VA Rating Decision (VARD) dated 20081218 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbar Spine Fusion Condition.  While deployed to Iraq in April 2005, the CI developed low back pain (LBP) that was not a consequence of trauma or injury, and required medical evacuation from theater.  Ongoing pain did not improve despite physical therapy and epidural steroid injections.  Degenerative disc disease at L4-5 was ultimately determined to be the cause of her pain, and on 10 December 2006 surgical fusion was performed.  Post-operatively, pain improvement was insufficient to allow return to full duties.  The neurology MEB addendum examination on 21 June 2007 (6 months prior to separation) noted normal lower extremity muscle strength.  At the narrative summary evaluation on 25 June 2007 the CI complained of constant pain of 3/5 out of 10 in severity.  She also noted intermittent numbness and tingling in each lower extremity.  Physical examination showed a slow but non-antalgic gait.  There was one sign of non-physiologic pain.  Electrophysiologic studies of the lower extremities on 31 July 2007 were normal.

At the VA Compensation and Pension (C&P) exam performed approximately 3 months after separation, the CI reported that her back condition resulted from too much heavy lifting.  Pain radiating down the right leg subsided after surgery, but left leg pain persisted and the CI complained of lower extremity weakness.  Back pain was constant and of moderate severity.  Flare-ups of pain occurred weekly and lasted for hours.  The CI indicated that there were 40 instances of “incapacitating episodes” during the previous 12 months, lasting 2 days each.  Examination showed no spasm, but some guarding and tenderness was noted.  Although an antalgic gait was present, guarding was not considered severe enough to cause the observed gait.  Spinal curvature and lower extremity muscle strength was normal.  At another C&P exam on the same day the CI was observed to have a normal gait and to sit quietly during the interview with a pleasant manner.  Review of the service treatment record (STR) found no episodes of physician-prescribed for back pain during the year prior to separation.

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)	MEB ~8 Mos. Pre-Sep	MEB ~6 Mos. Pre-Sep	VA C&P ~ 3 Mos. Post-Sep	
Flexion (90 Normal)	50 (50,50,50)	50	30	
Extension (30)	5 (5,3,3)	10	5	
R Lat Flexion (30)	20 (20,20,20)	25	15	
L Lat Flexion (30)	10 (15,10,10)	20	15	
R Rotation (30)	30 (30,30,30)	30 (40)	30	
L Rotation (30)	20 (20,20,20)	30 (35)	30	
Combined (240)	135	165	125	
Comment	“Measurements all done within painfree…limits”	+Tenderness, painful motion	+Tenderness, painful motion	
§4.71a Rating	20%	20%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5241 code (spinal fusion), while the VA rated the condition at 40% using the 5243 code (intervertebral disc syndrome).  Although the PEB’s 10% rating noted localized tenderness and pain-limited ROM, the flexion of 50 degrees recorded by two different examiners justified a 20% rating (flexion greater than 30 degrees but not greater than 60 degrees).  Based on the C&P examiner’s finding of 30 degrees of flexion, the VA’s 40% rating was supported.  The probative value of these evaluations was deliberated, and the entire file carefully reviewed for corroborating evidence from the period preceding separation.  The discrepant observations of gait by two VA examiners on the same day, the inconsistency of only achieving 30 degrees of lumbar flexion but being able to sit comfortably, and the markedly reduced lumbar flexion in the absence of muscle spasm caused the Board majority to question the reliability of the C&P ROM findings.  The Board concluded that the ROM data was more consistent with the diagnostic and clinical pathology in evidence prior to separation; and thus was assigned preponderant probative value.  It was agreed that the limitation of flexion from the exams justifies a 20% rating.  All members agreed that a higher rating could not be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes, since the STR does not document physician-prescribed bed rest for at least 4 weeks during the previous 12 months.  Finally, the Board considered if lower extremity radiculopathy warranted an additional disability rating.  Electrodiagnostic studies were negative for evidence of radiculopathy, and examiners recorded normal muscle strength.  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).”  The Board therefore concludes that additional disability was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that headaches were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  A neurology MEB addendum evaluation 6 months prior to separation indicated that headaches began after return from Iraq, but that the CI did not seek care for them because she didn’t realize they were migraines.  The neurologist opined that retention standards were met.  The commander’s statement specified only the lumbar spine condition as an impediment to performance of duties.  The 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 the headaches condition significantly interfered with satisfactory duty performance.  After due deliberation 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 headaches condition and so no additional disability rating is recommended.

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 fusion with persistent low back pain condition, the Board by a majority vote recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the contended headaches condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbar Fusion with Persistent Low Back Pain	5241	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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, AR20150008689 (PD201400598)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization 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:

Encl			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA