RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00896
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090302

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Ammunition Specialist, medically separated for “degenerative arthritis of the lumbar spine,” with a disability rating of 20%.

CI CONTENTION:  The CI contends his condition continues to worsen and affect his daily activities.  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 on 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 - 20081117	VARD - 20090729	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative…Lumbar Spine	5243	20%	Degenerative…Lumbar Spine…	5242	20%	20090425	
History…TBI Resolved	Not Unfitting	...Head Injury…Traumatic Brain Injury	8045	10%	20090415	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Lumbar Spine.   According to the service treatment records and medical evaluation board (MEB) narrative summary (NARSUM), the CI’s low back pain began during basic training, 2006.  Magnetic resonance imagining of the lumbar spine dated 11 September 2007 showed mild facet disease without canal stenosis or nerve root involvement.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic low back pain due to facet disease” for PEB adjudication.  The MEB NARSUM examination on 21 October 2008, approximately 4 months prior to separation, noted the CI reported back pain on the right and left sides of his lower back.  He denied radicular symptoms.  He noted he was unable to perform any of the physical fitness requirements, but was able to bike, swim, and walk at his own pace and distance.  He was not able to run.  Physical exam documented normal gait, and sensory function was intact.  Muscle spasms in the paralumbar muscles were noted and tenderness was present.   Range of motion (ROM) showed forward flexion of 55 degrees (normal 90) with extension of 22 degrees (normal 30).  He had a combined ROM of 197.  The examiner noted pain was present in all planes of motion.  The MEB examination (recorded on DD Form 2807 and 2808) dated 24 October 2008, noted the CI complained of “back pain all the time.”  The physical exam documented a negative straight leg test and “slight/moderate decrease ROM of L-S spine”.  

The VA Compensation and Pension (C&P) examination on 19 April 2009, was performed 7 weeks after separation. The CI reported low back pain without radiation, and frequent flare-ups.  He was not using any medications.  The examiner documented absence of evidence of any incapacitating episodes in the past 12 months.   Physical exam showed forward flexion ROM to 45 degrees and extension to 20 degrees.  Tenderness to palpation and spasms were absent.  There was no further limitation with repetitive motion.  The examiner documented normal motor strength and tone, sensory, reflexes, gait, and posture.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 20%, coded 5243 (intervertebral disc syndrome).  Likewise, the VA granted 20% rating under a different code, 5242 (degenerative arthritis).  The higher rating of 40% under the general spine codes requires forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; not supported by the evidence.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees.  The Board considered whether a higher rating (§4.7) was achieved by using the 5243 code based on incapacitating episodes due to intervertebral disc syndrome.  However, there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under intervertebral disc syndrome code.  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 pain condition.

Contended PEB Conditions:  History of post-concussion syndrome/TBI resolved.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended 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 History of Post-Concussion Syndrome/TBI resolved condition, 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 20140217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record
SAMR-RB

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX, AR20160010627 (PD201400896)

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