RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01161
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081222 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Information Technology Analyst) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “herniated lumbar disc (L5-S1)” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (astigmatism, myopia, right wrist pain and left knee pain) judged to meet retention standards.  The Informal PEB adjudicated “herniated lumbar disc” as unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  Her back condition continues to negatively impact her daily activities.  Her 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 

IPEB - Dated 20081022	VA* - (~6 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Lumbar Disc	5243	20%	Herniated Nucleus Pulposus L5/S1 w/ Bilateral Lower Extremity Radiculopathy 	5237	10%	20090618	
Other MEB/PEB Conditions x 4 (Not In Scope)	Other x 5 	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20091029 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Disc Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an atraumatic onset of back pain in late 2006 (2 years pre-separation).  There were lower extremity sensory complaints, but no subjective weakness.  Magnetic resonance imaging (MRI) diagnosed disc disease (bulge at L5/S1 with “mild” abutment of left nerve root), and electrodiagnostic testing (EMG) demonstrated a “mild” left L5/S1 radiculopathy.  The CI did not respond adequately to conservative measures, orthopedics did not recommend surgery, and, she was referred for an MEB.  There are multiple STR entries documenting grossly normal range-of-motion (ROM), but others describing limitations of flexion due to pain.  The most severe ROM limitation recorded was a physical therapy (PT) entry (15 months pre-separation) indicating flexion to mid-thigh (roughly 45 degrees), which improved in subsequent entries from the same provider.  There is ample STR documentation of normal gait, normal spinal contour, and normal neurologic findings.  There are no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM exam was conducted 23 September 2008 (3 months pre-separation) and documented that the pain was improving since assignment to medical hold and that it was “usually tolerable unless exacerbated by activity” (no mention of radicular complaints).  The NARSUM physical examination recorded a normal gait, the absence of tenderness or spasm, and normal neurologic findings (5/5 strength).  The NARSUM cited PT ROM measurements (from 2 weeks earlier) of flexion to 55 degrees (normal 90) and combined ROM of 160 degrees (normal 240). 

A VA Compensation and Pension (C&P) spine examination was conducted 18 June 2009 (6 months post-separation) and documented “mild” pain radiating to the right hip (contralateral to MRI and EMG findings) with sensory complaints, but specifically denying weakness or balance issues.  The VA physical examination recorded a normal gait, normal spinal contour, the absence of tenderness or spasm, and detailed normal neurological findings (motor 5/5 all groups, sensation intact all dermatomes, reflexes normal).  The VA measured ROM was normal in all planes.  The VA examiner entered a diagnosis of disc disease “with bilateral lower extremity radiculopathy” but did not elaborate a rationale for the latter.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under 5243 (intervertebral disc syndrome) was compliant with VASRD §4.71a criteria for the findings and ROM evidence from the STR and NARSUM.  The VA’s 10% rating was aligned with the C&P findings and ROM.  Although the VA subsumed bilateral radiculopathies in the condition nomenclature, it did not confer separate nerve ratings.  The evidence does not support any §4.71a criteria for a rating higher than 20% or the presence of incapacitating episodes that would achieve a higher rating under that formula.  The Board considered whether an additional rating could be recommended for the associated left radiculopathy.  Functional impairment linked to fitness is required to support a recommendation for addition of peripheral nerve rating to disability in spine cases.  Since there were no motor or objective sensory deficits in this case, members agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence.  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 20140305, 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, AR20160003636 (PD201401161)

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