RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00963
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080425 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Food Service Operations, medically separated for a lumbar condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “low back pain after surgery” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “degenerative disk disease” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated. 

CI CONTENTION:  The CI contends for his back and discusses the war.  The applicant’s complete submission is at Exhibit A.

SCOPE OF REVIEW: the Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the 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/Naval 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 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:  

Admin Corrected IPEB - Dated 20080410	VA* -  Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disk Disease	5299-5242	10%	Low Back Pain S/P Surgery ...	5242	50%*	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING: 50%*	
*Derived from VA Rating Decision (VARD) dated 20081216 (most proximate to date of separation [DOS]).  This was a pre-
   stabilization rating for six months, reduced to 10% effective 20081101.

ANALYSIS SUMMARY: 

Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an initial back injury from a fall during an Iraq deployment in 2003.  The CI completed the deployment and the condition was managed conservatively until an exacerbation of the pain (now with right sciatic radicular symptoms) in November 2006.  This did not respond to a further trial of conservative treatment.  Magnetic resonance imaging demonstrated disc disease (protrusion without impingement at L4/5, protrusion with right neural impingement at L5/S1), and electrodiagnostic (EMG) testing confirmed an acute right S1 radiculopathy.  Surgery (L5/S1 micro-hemilaminotomy) was performed in April 2007 (12 months pre-separation).  A post-operative note 2 months after surgery indicated good results with resolution of the radicular symptoms and a “return to near full duty;” but, a follow-up note 2 months after that indicated that the CI was transferred to medical holding and “does not desire to remain in the Army.”  There is one STR entry during the post-operative course noting non-specifically “decreased” flexion (other planes normal), but no others indicating abnormal range-of-motion (ROM); and, the final outpatient orthopedic entry documents grossly normal ROM and resolution of pre-operative right sciatic sensory findings.  Formal ROM measurements for the MEB were conducted by physical therapy in November 2007 (5 months pre-separation) and recorded flexion to 90 degrees (normal) with combined ROM of 240 degrees (normal).  There is ample STR documentation of normal gait and contour, and of normal neurological findings with 5/5 strength.  There are no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes after surgical recovery.

The NARSUM was conducted 17 January 2008 (3 months pre-separation) and documented persistent back pain (severity unelaborated) without mention of radicular complaints, and specifying limitations of “can’t run...can walk about 1½ miles....”  The NARSUM physical examination recorded the absence of tenderness, spasm, or guarding, normal neurological findings (5/5 strength), and grossly normal ROM.  The commander’s performance statement did not reference any work loss for other than medical appointments; and, cited limitations with lifting, prolonged standing, and “aerobic exercise at his own pace.”  The CI failed to report for a scheduled VA examination, and there is no temporally probative post-separation evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5242 (degenerative arthritis of the spine) was consistent with VASRD §4.71a criteria for the STR evidence, conceding functional loss to achieve the minimum compensable rating.  The VA’s 6-month pre-stabilization rating of 50% was under the same code and premised on the same evidence; and the decision stated that it was “based on your surgery with later residuals of same resulting in separation from the military due to inability to perform in your primary military occupational specialty due to symptoms of inability to left and stand for long periods and missing duty for medical appointments and convalescent leave.”  Members agreed that recommending a permanent separation rating on this basis was not reasonable.  The CI was a year out from his relatively conservative surgery, and was clinically recovered and stable.  The functional limitations in evidence did not have severe occupational implications; and, rating based on §4.71a criteria alone is readily justified and fair.  There is no ROM evidence supporting a rating higher than 10%, no evidence of gait or spinal contour abnormality in support of a 20% rating, no evidence of additionally ratable peripheral nerve impairment at separation, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 of the lumbar spine condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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, AR20160002556 (PD201400963)

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