RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01180
BRANCH OF SERVICE:  Army	BOARD DATE:  20141028
SEPARATION DATE:  20090420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (21B/Combat Engineer) medically separated for back condition.  This condition 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).  Back pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated degenerative arthritis of the lumbar spine as unfitting rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I cannot run/jump/walk for long periods of time.  Always in back pain. Effects everyday things.” (continued) “I would like to say my back injury has effected my life in so many ways.  I use to work out every day.  Run 2-3 miles a day.  Had the fastest PT 2 mile run in my unit.  Now I can’t walk 1 mile let alone run anywhere.  Exercise has become” (continue) “a pain for me.  To find exercises I can do without being in pain has made me struggle to find the drive to keep in shape.  Trustfully, I gave VP…  I don’t have the money to go to the gym to get a personal trainer to help motivate me.” 

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 those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:

Service IPEB – Dated 20090107	VA* - (2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis, Lumbar Spine	5242	10%	Posterior Disc Protrusion, L5-S1	5243	20%	20090220	
Other x 0 (Not in Scope)	Other x 1	
Combined:  10%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20090520 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his medical condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

Degenerative Arthritis of the Lumbar Spine.  The CI experienced the insidious onset of low back pain during his deployment in August 2007.  He was able to complete his rotation and upon return state-side he was evaluated and treated by physical therapy (PT).  Plain film X-rays for the lumbar spine were normal and he didn’t respond to PT, non-steroidal medications (NSAIDS) muscle relaxers and duty restriction.  A magnetic resonance imaging (MRI) study revealed a “very small broad-based posterior disk protrusion at the LS-S1 level, without central canal stenosis or neural foraminal narrowing.  The MRI of the lumbar spine is otherwise normal.”  He was referred for orthopedic evaluation and did not desire surgical intervention.  At the MEB narrative summary examination dated approximately 4 months prior to separation; the CI reported focal pain at L2 through L4 levels which radiated down the midline of his back.  There was no radiation to his legs, no paraesthesias, no weakness and no bowel or bladder control problems.  He endorsed flare-ups of his pain which involved local increase in pain, from 2/10 and increased up to 8/10, at least twice per week.  The pertinent physical exam findings are summarized in the chart below.

At the VA Compensation and Pension (C&P) exam, performed approximately 2 months after separation, the CI reported that he used conservative treatment of rest, NSAIDS and PT.  These treatment modalities helped with his multiple musculoskeletal discomforts but did not resolve them.  His spine pain did not preclude him from walking extended distances, but often caused discomfort either during or following the event.  There was no unsteadiness and he had not been placed on strict bed rest by a physician for incapacitating spine pain over a period of 12 months.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM (Degrees)	DD 2808 8 Mo. Pre-Sep	NARSUM 4 Mo. Pre-Sep	VA C&P 2 Mo. Pre-Sep	
Flexion (90 Normal)	Full ROM	70	60	
Combined (240)	Full ROM	210	210	
Comment	Normal gait; Pos. painful motion; Neg. straight leg raise (SLR); Normal strength, reflexes & sensation	Normal gait; Pos. painful motion; No spasm; Neg. SLR; Normal strength, reflexes & sensation	Normal gait; Neg. SLR; Pos. tenderness to palpation; Normal strength, reflexes & sensation	
§4.71a Rating	10%*	10% (PEB 10%)	20% (VA 20%)	
*IAW §4.59 (painful motion)

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5242 (degenerative arthritis of the spine) and rated it 10% specifically citing VASRD rating principles.  The VA applied code 5243 (intervertebral disc syndrome) and rated it 20% based on the documented ROM.  IAW the General Rating Formula for Diseases and Injuries of the Spine the evidence supports that the CI had a herniated disc of the lumbar spine; however, he did not manifest symptoms of intervertebral disc syndrome and had no periods of incapacitation due to his back pain.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI's pain symptoms with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.  Board members agree that code 5242, utilized by the PEB, is the most appropriate code in this case.  The Board also determined the VA C&P exam as the most probative exam for its rating recommendation based on its closer proximity to separation.  As applied by the VA, the CI’s ROMs, documented 2 months prior to separation and were consistent with a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the degenerative arthritis, 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 degenerative arthritis, lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Arthritis, Lumbar Spine	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150007661 (PD201401180)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		     

CF: 
(  ) DoD PDBR
(  ) DVA