RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00828
BRANCH OF SERVICE:  Army		BOARD DATE:  20160201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Health Care Specialist, medically separated for “low back pain” with a disability rating of 10%.

CI CONTENTION:  The applicant makes no specific contention in his application.  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 - 20090220	VARD - 20090731	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion Lumbar Region	5241	10%	Intervertebral Disc Syndrome	5241	40%	20090528	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Lumbar Spine.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a lumbar spinal fusion on 27 November 2007 as well as a second surgery for hardware revision on 24 January 2008 after initially falling on his low back resulting in back and bilateral leg pain and numbness.  Magnetic resonance imaging of the lumbar spine demonstrated bulging discs encroaching upon adjacent nerves.  Following recovery from surgery, he experienced complete resolution of lower extremity radiculopathy, but duty limiting back pain symptoms remained and he was referred to an MEB.  At the MEB examination (performed 4 months prior to separation), the CI reported LBP present “60% of the time during the day while awake and the intensity ranges from 4-6 out of 10.”  The MEB physical examination noted muscle tenderness (without spasms) about the lumbosacral spine.  Thoracolumbar range-of-motion (ROM) was decreased and painful.  His gait was described as “non-antalgic.”  His diagnosis remained as chronic LBP status-post surgical intervention.

At the VA Compensation and Pension (C&P) examination performed on 28 May 2009 (3 days prior to separation), the CI reported having a constant aching and sharp 9/10 LBP extending into his right hip.  He additionally reported that at the time of pain he could function with medication.  His functional ability was listed as, “able to brush teeth, take a shower, vacuum, drive a car, cook, climb stairs, dress self, take out the trash, walk, shop, perform gardening activities and push a lawn mower.”  Although the CI reported 2 extended periods of incapacitation time (30 and 45 days of bedrest; corresponding to each surgery), the records indicate only 48 hours of bedrest was recommended after the first surgery and ‘walking as tolerated’ was listed upon hospital discharge 2 days after the revision surgery.  On the VA examination, there was decreased and painful thoracolumbar ROM as well as tenderness.  His posture, gait, and motor reactions were normal.  There was an unquantified sensory deficit to the front of the right thigh.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 10% using VASRD code 5241 (spinal fusion) indicating tenderness without spasm or guarding.  The VA utilized the same code at a 40% rating citing limiting flexion ROM.  The Board’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value is placed on evidence most proximate to that time.  Clearly, in this case, that would equate to the VA exam at 3 days pre-separation as having near exclusive probative value.  However, due to the significant differences between the ratings adjudicated by the PEB and VA, the Board carefully considered the whole record in order to develop a consistent picture of the CI’s overall spine condition.  Board members took into consideration and deliberated the following issues.  The consistency of maintaining a normal gait coupled with the ability to perform activities of gardening and driving a car during a period that was void of further injury or new pathology appeared implausible in achieving the resultant degree of limited motion.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority agreed that a disability rating of 10% for the spine condition was appropriately recommended in this case.

BOARD FINDINGS.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  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 20140221, 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, AR20160005806 (PD201400828)

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