RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-00849
BRANCH OF SERVICE:  Army                                                                  SEPARATION DATE:  20080621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Health Care Specialist, medically separated for “L5-S1 disc protrusion with degenerative disc disease” with a disability rating of 10%. 

CI CONTENTION:  The CI contends for his unfitting back, his not unfitting mental health (anxiety and depression (stated as PTSD), and a condition not identified by either the MEB or PEB. His conditions continue to worsen and negatively impact his daily activities and he was given a higher rating for his conditions by the VA.  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 based upon a 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 - 20080428	VARD – 20081217 and 20090505	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Disc Protrusion with Degenerative Disc Disease	5243	10%	Lumbar Spine Disease	5242	10%	20090212	
			L5-S1 Radiculopathy	8520	10%	20090212	
Anxiety	Not Unfitting	Anxiety Disorder	9400	NSC	STR	
		PTSD	9411	30%	20081201	
Depression	Not Unfitting	Depression	9434	NSC	20081201	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

L5-S1 Disc Protrusion with Degenerative Disc Disease.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in January 2007 while trying to avoid a vehicle that he was loading when it rolled backwards into him.  He was treated with medications and rest and gradually improved and served the remainder of the deployment until August 2007.  He did not improve further after redeploying and reported constant low back pain (LBP) with occasional right lower extremity (LE) radiation.  Lumbar spine magnetic resonance imaging (MRI) on 17 October 2007 showed degenerative disc disease (DDD) of the lower thoracic and lumbar spine, with a bulging disc at L5-S1 which contacted the left S1 nerve root.  Electrodiagnostic studies of the LEs noted left L5-S1 radiculopathy and right nerve root irritability.  At the time of the orthopedic evaluation 12 December 2007, the CI had already been treated with rest, anti-inflammatory medications, and therapy but continued to report pain and difficulty with his routine daily activities, such as holding his toddler aged daughter.  The examination noted a normal gait and stance and no muscle spasms were present.  Thoracolumbar range of motion (ROM) testing was normal.  There was decreased sensation of the right calf and bottom of the foot, with normal strength and reflexes.  A follow-up orthopedic evaluation in January 2008 noted normal appearance of the spine with no tenderness to palpation (TTP) and normal ROM that was painful, with normal LE exam.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “herniated disc (L5-S1)” and “lumbar disc disease” for PEB adjudication.

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 11 April 2008, 2 months prior to separation, the CI reported constant LBP with occasional numbness of the leg.  Physical examination noted “marked” muscle spasm, but was “otherwise unremarkable.”

At the MEB NARSUM examination also performed on 11 April 2008, the CI reported LBP, aggravated by activity.  Overuse could cause a flare-up, which lasted one day and he treated with rest and medication.  The MEB physical examination noted TTP of the lumbar and lower thoracic muscles, with “marked” spasm noted.  Back ROM was reduced in left lateral flexion and rotation.  The CI was able to heel and toe walk.  Strength and reflexes of the LEs was normal and straight leg raise testing to elicit radicular symptoms was negative bilaterally.  Physical therapy ROM for the MEB performed on 11 March 2008 (with a goniometer) was thoracolumbar flexion of 90 degrees (normal 90) and combined ROM of 220 degrees (normal 240), with painful motion noted.  On an “observations” checklist, the therapist indicated muscle atrophy was “possible due to lack of rotational motion,” but did not indicate localized tenderness, muscle spasm, guarding, abnormal gait, abnormal spinal contour, swelling, deformity, or scarring.  The MEB NARSUM noted that the CI missed duty “only for medical appointments.”

At the VA Compensation and Pension (C&P) spine examination performed on 12 February 2009, 8 months after separation, the CI reported LBP with radiation into the bilateral LEs, left worse than right, with numbness of the left great toe.  He reported use of anti-inflammatory medication and pain medication daily with flare-ups 3 times per week lasting approximately 3 days, alleviated by time and stretching exercises.  The CI did not use a cane or crutch.  The examination showed goniometric TL flexion of 65 degrees, with combined ROM of 195 degrees, with painful motion noted and no additional loss of ROM with repetition.  There was decreased sensation on the bottom of the left great toe, otherwise LE sensation was normal.  Strength of the left LE was “slightly decreased” compared to the right, with no apparent muscle atrophy and reflexes were normal.  Maneuvers to elicit radicular symptoms were negative (Lasegue’s).  Lumbar spine MRI performed on 5 February 2009 reportedly showed DDD at “L5 with disc protrusion and radiculopathy.”  A VA C&P Neurological Disorders examination on the same day noted the CI had “restless leg syndrome”, aggravated by flare-up of his back condition.  The examination indicated that the CI “had a nerve conduction study showing a normal study.”  The diagnosis was restless leg syndrome.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome) and cited tenderness and spasm without an abnormal gait with near normal ROM.  The original VA Rating Decision (VARD) deferred rating of the back condition and any associated radiculopathy.  The VARD dated 5 May 2009 rated the low back condition 10%, coded 5242 (degenerative spinal arthritis), citing ROM, and also rated left L5-S1 radiculopathy 10%, coded 8520 (sciatic nerve) based on the February 2009 VA C&P exam, 8 months after separation, citing EMG evidence of left LE radiculopathy, decreased sensation of the left great toe and slightly decreased strength of the left LE.

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) and/or combined range-of-motion (greater than 120 degrees but not greater than 235 degrees) reported on the MEB NARSUM and VA C&P Spine examinationss.  Although there was muscle spasm noted on the day of the MEB NARSUM examination, neither an abnormal gait nor abnormal spinal contour was noted on the exam, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  After due deliberation, 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 low back condition.

Contended PEB Conditions:  Anxiety And Depression.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the “L5-S1 disc protrusion with degenerative disc disease” condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety and depression conditions, the Board unanimously recommends no change from the PEB determinations 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 20140219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

JUL 28 2016

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 XXXXXXXXXXXXXXXXXXXX, AR20160011333 (PD201400849)

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