RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00686
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Unit Supply Specialist, medically separated for “chronic low back pain status post L5-S1, lumbar fusion,” with a disability rating of 10%. 

CI CONTENTION:  The applicant contends that her migraines should have also been found unfit and rated.  The applicant’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 - 20060523	VARD - 20070203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain …	5241	10%	Degenerative Disc Disease L5-S1 with Herniated Nucleus Pulposus, Status Post Fusion	5241	20%	20060919	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL CONDITIONS:  40%	

ANALYSIS SUMMARY.  

Low Back Pain (LBP).  The record showed that the CI was treated with medications, injections, duty limitations, and chiropractic manipulation without resolution.  Image testing on 29 October 2004 showed a herniated disc at L5-S1 of “questionable clinical significance.”  A subsequent discogram (a provocative test for disc pain) was concordant (positive) at L5-S1.  She then had surgery on 3 May 2005.  Despite rehabilitation in physical therapy, her pain persisted and she was entered into the Medical Evaluation Board (MEB) process.  At the MEB examination, the CI reported that her LBP dated to an accident in April 2003 when a tent pole fell onto her during a windstorm.  The MEB physical examiner noted limited and painful motion.  The paraspinal muscles were tender, but the gait and neurological examination were normal.  The narrative summary was dated 17 February 2006, 4 months prior to separation.  It noted that she had persistent restrictions from pain.  No examination was appended, but a neurological addendum for headaches, dated 23 March 2006, recorded an essentially normal neurological examination other than decreased sensation in a stocking distribution (not from radicular disease) and questionable weakness of her right hamstring vice poor effort.  At the VA Compensation and Pension (C&P) examination performed on 19 September 2006, 3 months after separation, the CI reported persistent LBP.  Her posture and gait were normal.  The neurological examination was normal.  Spasm was absent.  Her range-of-motion (ROM) was limited and painful.  A review of the record did not show that the scar impaired sufficiently to be separately unfitting.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5241 (spinal fusion).  The VA used the same code, but rated the back at 20%.  The limitation in motion on both the MEB and VA examinations supported the 20% rating.  The Board found no route to a higher rating.  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 back condition, coded 5241.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headache condition was 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.  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 it 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 contended migraine headache condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  I In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended migraine headache 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.  

CONDITION	VASRD CODE	RATING	
DDD with Herniated Nucleus Pulposus, Status Post Fusion	5241	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140205, 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, AR20160006642 (PD201400686)

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