RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00974		
BRANCH OF SERVICE:  Army	Separation Date:  20080724

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Infantryman, medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain (LBP) due to degenerative disk disease (DDD) and spondylolisthesis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (stage 1A diffuse B cell large cell lymphoma, right posterior cervical lymph node) for PEB adjudication.  The Informal PEB adjudicated his back as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI attached a 2 page statement to his application which was reviewed by the Board and considered in its recommendations.  

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:  
IPEB – Dated 20080626	VA* - (~1 Month Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…	5237	10%	Multilevel DDD with Nerve Root Compression and Radiculopathy	5242	10%	20080822	
Stage 1A Diffuse B Cell Large Cell Lymphoma	Not Unfitting	Non-Hodgkin's Lymphoma - Aggressive B Cell Type	7715	0%	20080822	
Other x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20081230 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  

Chronic LBP.  The CI developed sudden back pain (LBP) and weakness in the right leg which resulted in a fall after a 12-mile march, in June 2004.  In July 2004, he had a similar episode of sudden LBP.  He was treated conservatively for both LBP episodes.  The back condition progressively worsened.  A lumbar spine X-ray done in May 2006 showed mild narrowing of the L5-S1 disc space with mild degenerative changes.  A lumbar spine MRI done in May 2006 showed mild degenerative disc changes at L4-5 and L5-S1; and evidence of minimal spondylolisthesis in the L5 over S1 along with spondylolysis and bulging at L5-S1 due to degenerative changes.  The Oncologist in October 2006 noted that the lumbar spine changes were causing nerve root compression and severe neuropathic pain.  

The MEB Narrative Summary (NARSUM) exam, approximately 2 months prior to separation documented that the CI continued to report daily LBP with pain radiation to his right thigh and an associated weak sensation.  He reported intermittent numbness in the right thigh and pain while bending with no pain radiation or paresthesias below the knee.  He had flares when bending or picking up heavy objects which lasted 5 to 10 minutes and once or twice a month lasting up to two days.  The CI’s MOS was changed to a recruiter because he could not run or march and he could not carry a rucksack or lift more than 30 pounds.  The MEB NARSUM physical exam findings and Physical Therapist (PT) performed goniometric range-of-motion (ROM) evaluations for the MEB are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam approximately a month after separation documented that the CI reported LBP, stiffness, limited motion and pain radiation with heavy lifting, bending, and prolonged sitting or standing.  The VA C&P physical exam findings are summarized in the chart below.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the LBP condition as 5237 (lumbosacral strain) and rated at 10%.  The VA coded the back condition as 5242 (degenerative arthritis of the spine) and rated at 10%.  The CI met the 10% rating criteria for painful motion and combined ROM greater than 120 degrees but not greater than 235 degrees on all exams.  The Board adjudged that the PT exam’s comments on thoracic contour did not meet the 20% criteria for muscle spasm or guarding severe enough to result in an abnormal spinal contour.  There was no evidence of more limited thoracolumbar spine ROMs, or periods of incapacitation for higher rating.  The general rating formula for the spine includes all thoracolumbar spine pathology and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the affected spine.  Although the CI reported LBP with pain radiation to his right thigh and an associated weak sensation along with intermittent numbness in the right thigh when he sat or stood too long, there was no objective evidence of fixed motor weakness or focal neurologic deficit for additional rating.  Since no evidence of functional impairment from any radiculopathy existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 LBP condition.  

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was Stage 1A Diffuse B Cell Large Cell Lymphoma.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is preponderance of the evidence but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although this condition was profiled and judged to fail retention standards; it was not implicated in the commander’s statement.  There is clear evidence in the service treatment record that the CI’s lymphoma was in remission.  His last treatment for active disease was in June 2005.  The oncologist documented on 30 August 2006 that there was no evidence of recurrent lymphoma (no evidence of active disease) and there was no evidence of significantly disabling residuals.  The CI was required to follow-up with his oncologist on an every 4-month basis and he was required to have a positron emission tomography scan every 6 months.  All evidence was reviewed and considered by the Board.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation 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 Stage 1A Diffuse B Cell Large Cell Lymphoma contended condition and, therefore, no additional disability rating can be recommended.  

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.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended Stage 1A Diffuse B Cell Large Cell Lymphoma 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.  

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, AR20160002775 (PD201400974)

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