RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01174
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Combat Engineer, medically separated for “lumbar intervertebral disc syndrome,” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends he was given a lower disability rating than he deserved.  The applicant’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 confined to 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 - 20090526	VARD - 20091218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Intervertebral Disc…	5243	10%	Discogenic Disease L4-L5 w/Thoracic…	5242	10%	20090421	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbar Intervertebral Disc Syndrome.  According to service treatment records and the medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in July 2006 and was associated with no known trauma or injury.  Radiographic studies in 2007 and 2008 showed degenerative changes of the lower thoracic spine and some disc protrusion at T11-12 without neuro-foraminal impingement and mild low back disc degeneration.  In addition to his low back pain, the CI experienced periodic pain, numbness, and tingling in his right lower extremity.  There was no surgical indication.  
Despite conservative treatment, the CI’s low back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty, so he was referred for an MEB.  

At the time of the primary care clinic appointment on 12 February 2009 (7 months prior to separation), the CI complained of back pain and reported being uncomfortable sitting for extended periods of time.  On examination, the thoracic spine had a normal appearance.  Lower extremity strength, reflexes, and sensation were normal.  Other examination findings are summarized in the chart below.  The MEB NARSUM examination on 21 April 2009 (4 months prior to separation) noted complaints of pain in the mid-lower back area, which occasionally caused his “legs to feel funny and maybe have pain and be numb and tingly.”  The reported radicular symptoms would “last for a very short period of time.”  The CI reported taking narcotic pain medication at a rate of 2-3 tablets per day.  The pain was constant, rated 5/10 intensity, and worse after vigorous exercise, bending, or heavy lifting.  The CI stated he “might be able to walk, bike, and swim on a very limited basis and distance.”  Physical examination showed symmetric reflexes and normal strength and sensation.  Provocative maneuvers for nerve root irritation were negative.  Range-of-motion (ROM) and other significant data points for rating are summarized in the chart below.  

At the VA Compensation and Pension (C&P) examination on 21 April 2009 (the same day as the NARSUM examination), the CI reported pain and decreased ROM precipitated by exercise, prolonged standing, or weather changes.  The pain was alleviated by medication.  The CI reported 7/10 pain flare-ups approximately 2-3 times per day for 2-3 hours.  Physical examination showed normal findings.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), citing presence of tenderness.  The VA also assigned a 10% rating using the 5242 code (degenerative arthritis of the spine)  based on the VA C&P examination 4 months before separation, citing functional loss.  There was no limitation of thoracolumbar spine motion to support a minimum rating under the General Rating Formula for Diseases and Injuries of the Spine however the NARSUM examination noted the presence of localized tenderness for a 10% rating.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The Board also considered whether additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.   The Board therefore concluded that additional disability rating was not justified on this basis.  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 condition.  

BOARD FINDINGS:  In the matter of the lumbar intervertebral disc syndrome 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.  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 20140303, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160005819  (PD201401174)

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
( ) OVA