RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00809
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Infantry, medically separated for “degenerative arthritis of the lumbar spine,” with a disability rating of 10%.  

CI CONTENTION:   “Discharged for back injury – was not evaluated for injuries that were caused by back injury, radiculopathy left leg causing knee pain.”  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 - 20081014	VARD - 20090317	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Lumbar Spine	5242	10%	Lumbosacral Disk Degeneration	5242	0%	STR	
Bilateral Hip Pain	Not Unfitting	Bilateral Hip Pain and Leg Weakness associated with Lumbosacral Disk Degeneration	5299-5254	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Lumbar Spine.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s degenerative arthritis of the lumbar spine (low back) condition began in February 2005 after being blown from the top of a Bradley Fighting while deployed to Iraq.  The CI hurt his low back again in August 2006 following injury from an improvised explosive device during a subsequent Iraq deployment.  An MRI in September 2007 showed moderately severe broad based disc bulging at L3-L4, L4-L5, and L5 S-1 vertebra, with disc space narrowing and desiccation.  No discrete disc herniation was evident and no spinal canal stenosis was present, but there was bilateral neuroforaminal narrowing at the noted vertebral levels.  There was no surgical indication, and conservative treatment including several epidural steroid injections, did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbosacral disk degeneration causing chronic back pain” for PEB adjudication.  

The range of motion (ROM) examinations 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)	VA C&P ~9 Mo. Pre-Sep	MEB (PT) ~7 Mo. Pre-Sep	
Flexion (90 Normal)	90	80	
Combined (240)	240	225	
Comments	No painful motion; neg. DeLuca	Pain limited motion; neg. Deluca	
§4.71a Rating	0%	10%	

At the physical therapy (PT) clinic examination on 14 February 2008, 10 months prior to separation, the CI reported low back pain aggravated by prolonged sitting, standing, running, lifting, and squatting.  Pain was relieved by medication, stretching and hot shower in the morning.  Pain intensity was 6-7/10 with at best 4/10 and worst 9/10.  Physical examination showed the CI had a normal gait and posture.  No atrophy, discoloration, swelling or edema were present.  Active ROM testing revealed full forward flexion; extension decreased by approximately 50% [~15 degrees] with mild discomfort; and lateral flexion was within normal limits.  

At the 14 March 2008 VA Compensation and Pension (C&P) evaluation, performed 9 months before separation, the CI reported lower back pain and numbness, bilateral hip pain and leg weakness.  Exercise and prolonged standing aggravated his condition while rest and stretching alleviated his pain.  Pain was 6/10 in intensity and only present with flare ups.  Flare ups occurred only during times when aggravated as described.  Physical examination showed a normal gait with no ambulatory aids utilized.  The CI’s lumbar spine was normal in appearance with no tenderness to palpation or muscle spasms.  Straight leg raise was negative (test for sign of neurologic abnormality) and muscle strength in his lower extremities was normal (5/5).  He was able to do repetitive deep knee bends without complication.  Back ROM measurements were recorded per chart above.  DeLuca factors were negative (no additional loss of function due to repetitive ROM testing).  Hip ROMs were normal (without pain or other DeLuca factors on repetition) and lower extremity reflexes and sensory testing were normal.  Diagnostic imaging of the hips was normal; lumbar spine demonstrated moderately severe degenerative disc changes with mild to moderate encroachment on the neural foramen.  

The MEB NARSUM examination on 18 March 2008, 9 months prior to separation, noted complaints of a constant dull ache in the CI’s lower back occasionally radiating to the buttocks and down the left leg.  The CI reported his buttocks and leg would go numb after prolonged sitting or if he ran.  The CI related a history of bilateral hip pam intermittently in relation to his back pam, as well as intermittent weakness in the bilateral lower extremities, left greater than right that could be related to his back pain and often started as tingling and numbness with prolonged standing or sitting but resolved with rest.  

He was unable to run, road march, wear body armor, carry a fighting load, construct a fighting position or do 3 to 5 second rushes.  He could not do sit-ups but could do modified push-ups.  His pain at rest was 4-5 /10, increasing to 8/10 with prolonged standing, sitting, driving long distances and prolonged walking.  Physical examination of the lumbosacral spine showed no swelling, induration, erythema, warmth, or tenderness to palpation.  There was painful decreased ROM with forward flexion and extension, as well as left and right lateral rotation and left and right lateral flexion (examiner referenced the 8 May 2008 PT ROMs).  There were no muscle spasms noted.  Neurologic examination including sensory testing, motor strength and reflexes were normal.  

At the time of the PT examination for the MEB on 8 May 2008, 7 months prior to separation, the examiner recorded painful limited motion (see chart above) and an abnormal spine contour without guarding or muscle spasm.  DeLuca factors were negative, and other ratable factors (abnormal gait, tenderness, muscle atrophy) for diseases and injuries of the spine per VASRD §4.71a criteria were absent.  

At the Warrior care clinic examination on 22 September 2008, 3 months prior to separation, the CI experienced back pain at rest with intensity 4/10, which increased to 7-8/10 with prolong standing, sitting or walking.  He had intermittent numbness and tingling down his left leg into the mid-calf and ankle, and took narcotic pain medication 1-3 times per day.  Physical examination showed decreased painful active ROM in all planes.  There was tenderness to palpation, but there was no swelling, induration, erythema, warmth or muscle spasm.  The lumbosacral spine exhibited a normal appearance.  Gait and stance were abnormal with abnormal heel walking.  Motor, sensory and reflex testing were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% coded 5242 (degenerative arthritis of the spine), citing forward flexion of 80 degrees and combined ROM of 225 degrees as found on the MEB PT examination.  The VA rated the low back condition 0% coded 5242 (degenerative arthritis of the spine) indicating the CI had failed to show for a VA C&P examination.  The VA rater cited the criteria for a noncompensable evaluation (forward flexion of the thoracolumbar spine of greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 235 degrees) as presumably found on the in-service VA C&P examination cited above.  Later VA records indicated a 10% back and 10% left leg radiculopathy rating was granted effective in 2010 (based on exam in 2010).  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or combined ROM greater than 120 degrees but not greater than 235 degrees reported on the MEB PT examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had diagnostic imaging indicating neuroforaminal narrowing at L3-S1 and there were symptoms of radiating pain and episodic left leg numbness documented in the treatment records; however, examinations indicated normal strength, reflexes, gait, and sensory testing.  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.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  
Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

After due deliberation, and 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 degenerative arthritis of the lumbar spine condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral hip pain 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 bilateral hip pain was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance-based evidence from the record that bilateral hip pain significantly interfered with satisfactory duty performance at separation.  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 bilateral hip pain condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the degenerative arthritis of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral hip pain 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.  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 20140218, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160009857 (PD201400809)

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