RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-01061
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20081029 

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was a National Guard E-4 (Military Policeman) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “low back pain without significant neurologic abnormality” as unfitting, rated 10%, citing criteria of Army Regulation 635-40; but, an informal reconsideration PEB, in compliance with the National Defense Authorization Act of 2008, increased the rating to 20% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  He was given a higher rating for his condition by the VA.  The 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:  
   
Service Recon PEB – Dated 20080206	VA* - (~10 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5299-5237	20%	Lumbar Degenerative Disc…	5243	50%**	20090824	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 2	
Combined:  20%	Combined:  50%	
* Derived from VA Rating Decision (VARD) dated 20091014 (most proximate to date of separation [DOS]).
** This is a retained rating conferred by VARD dated 20050816 (> 3 years prior to DOS).  The above VARD did not reassess the 
      lumbar spine rating but the associated exam provided probative evidence.

ANALYSIS SUMMARY: 

Lumbar Spine Condition.  Outpatient entries in the available service treatment record (STR) are sparse, but an entry from December 2002 (6 years pre-separation) documents an onset of back pain with weight-lifting.  Magnetic resonance imaging from October 2003 demonstrated degenerative disc disease at L5/SI with bulging, but no indication of nerve impingement; and, surgery was not indicated.  There are contemporary STR entries documenting range-of-motion (ROM) as either grossly normal or flexion in the 70-80 degree range (normal 90), and none indicating more significant ROM limitation.  There are no STR entries recording neurologic or other probative physical examination findings, and no outpatient entries at all from the 12-month period preceding separation.  There is an entry from September 2007 (13 months pre-separation) documenting an electrodiagnostic (EMG) report of “moderate bilateral S1 radiculopathy.”  The VA rating decision, however, documents normal EMG results from September 2008 (2 months pre-separation).  

The narrative summary (NARSUM) was written 9 October 2007 (4 months prior to the PEB, and 13 months pre-separation).  It documented persistent back pain rated “slight/frequent” associated with “lower extremity numbness and tingling sensations” and “exacerbated by prolonged standing, sitting and walking.”  The NARSUM physical examination recorded tenderness and spasm, “decreased pinprick at the bilateral S1 dermatomes,” but 5/5 motor strength and normal reflexes.  The reported ROM measurements were flexion to 40 degrees and combined ROM of 130 degrees (normal 240).  

A VA Compensation and Pension (C&P) examination was conducted 24 August 2009 (10 months post-separation) and there was no documentation of interim injury or other exacerbation of the condition.  The CI was employed full time as a “recreational leader” at a correctional facility.  The examiner documented “constant” pain of “moderate” severity with radiation to the left lower extremity, noting numbness but denying weakness or unsteadiness; and, functional limitations with walking and prolonged standing or sitting.  The VA physical examination recorded a normal gait, spasm and tenderness, and normal neurological findings (including sensory).  The VA measured ROM was flexion to 20 degrees and combined ROM of 90 degrees.
 
The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating analogous to 5237 (lumbar strain) was compliant with VASRD §4.71a criteria for the ROM evidence and other ratable findings from the NARSUM and STR.  The VA’s 50% rating dating to 2005 (as per rating chart footnote) was not distinctly rationalized in that VARD, and it referenced a VA examination finding of flexion to 30 degrees which is the §4.71a threshold for a 40% rating.  There is a disparity in this case between the NARSUM and later C&P ROM findings with obvious implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  The NARSUM ROM measurements are more consistent with the evidence from the available STR, although those entries were several years prior to separation.  The overall clinical acuity (single level disc disease without complications or surgical intervention) and functional capabilities (degree of limitations, normal gait, full-time employment) are more consistent with the Service evidence than with the ROM limitations reflected by the C&P evidence, and there is not a good clinical explanation for the deterioration of ROM in the interval between the examinations.  Members agreed, therefore, that the Board’s recommendation was more reasonably (and fairly) premised on the Service evidence.  There is no evidence for incapacitating episodes that would achieve 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.  

The Board considered whether an additional Service rating could be recommended for the associated radiculopathies at separation.  The VARD approximate to separation denied service-connection for claimed bilateral radiculopathies, stating that the evidence failed to show that they had been clinically diagnosed.  Functional impairment linked to fitness is required to support a recommendation for addition of peripheral nerve rating to disability in spine cases.  There was no motor deficit in this case, and the equivocal sensory deficits had no functional implications.  Members thus agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence.

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 determinative 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 20140228, 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, AR20160002781 (PD201401061)

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