RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01184
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “intervertebral disk degeneration L4-5 and lumbago” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (hypertension and migraines) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the LBP as unfitting, rated 10%, with application 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:  His conditions continue to worsen and negatively impact his daily activities.  Also, he contends a PTSD and depression condition.  His 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 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 20061012	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP with L4/L5 Disc Bulge...	5299-5237	10%	Lumbar Spine Herniated Disc	5242	20%	20061213	
			RLE Radiculopathy	8520	0%	20061213	
Hypertension	Not Unfitting	Hypertension	7101	10%	20061213	
Migraines	Not Unfitting 	Migraine Headaches	8100	0%	20061213	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070321 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

LBP Condition.  The CI had been seen intermittently for several years due to LBP when he was evaluated on 17 February 2006 for LBP with radiation down both legs and a numb right foot.  His forward flexion was “good” and neurological examination intact.  An MRI on 25 April 2006 showed a herniated disc at L4/5.  He was evaluated in neurosurgery on 29 June 2006 and the narrative summary (NARSUM) was prepared.  The CI reported back pain refractory to medications and physical therapy (PT).  He had been on a profile for over 10 months.  On examination, his strength, reflexes, and sensation were normal.  No comment was made on gait or posture.  The range-of-motion (ROM) was limited by pain at the extremes of motion.  Flexion was to his mid-shin (over 60 degrees) and side bending to his patellae (kneecaps; this is over 30 degrees).  Spasm was noted with changes in position.  At the MEB examination on 5 July 2006, the CI was noted to have numbness around the right great toe, but a normal neurological examination otherwise.  Formal ROM measurements in PT on 28 August 2006 are recorded below.  These were done with an inclinometer and goniometer.  The limitation was from pain.  An addendum to the NARSUM dated 29 September 2006, noted a normal heel-toe walk and absence of muscle atrophy.  At the VA Compensation and Pension (C&P) examination performed on 13 December 2006, 2 months after separation, the CI reported that he had not done a physical fitness test recently, but that he swam, walked, and scuba dove.  He was noted to sustain heavy physical activities without immediate distress.  He reported that he had been offered a change in his MOS, but declined and was then medically separated.  On examination, his gait and posture were normal as was the neurological examination.  Tenderness was not present and spasm was not recorded.  Flexion lacked two inches of touching his toes (normal).  The examiner noted that there was no pathology upon which to base a diagnosis.  No incapacitation was recorded in the year prior to separation.  A mental health record from 3 April 2014 noted that the CI was a police officer after separation (2007-2013).  Prior to his second active tour, he had been a police officer in a different state.  This implies that he met the physical requirements of this occupation shortly after separation.  Also, a mental health note dated 23 April 2014 recorded that the CI ran, lifted weights, and went rock climbing for enjoyment although he was not currently doing these activities due to mental health concerns.  The 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)	NS ~7 Mo. Pre-Sep	PT ~5 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
Flexion (90 Normal)	Fingers to mid-shin	55 (55,57,54)	Fingers 2 inches above toes	
Combined (240)		190	#	
Comment	Limited by pain	Inclinometer and goniometer	No pathology to make a diagnosis	
§4.71a Rating	10%	20%	0%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5299-5237 (analogous to lumbosacral strain).  The VA rated the back at 20%, coded 5242 (degenerative arthritis of the spine), relying on the August 2006 ROM measurements from PT.  The Board considered the evidence.  While spasms were recorded at the neurosurgical evaluation, neither an abnormal posture nor gait was in evidence on any examination available for review.  The ROM done by PT was with an inclinometer and with a goniometer instead of just the latter.  No complete examination was in evidence which used a goniometer and was proximate to separation.  However, the Board noted that the ROM recorded by both the MEB neurosurgeon and the VA C&P examiner was normal or near normal within the parameters recorded.  The activities reported to the C&P examiner are not consistent with the limitations in motion recorded at the PT evaluation.  In addition, the CI was hired as a police officer the same year he separated from the military, implying a level of function greater than that measured by PT in August 2006.  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 Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension and migraine headache conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Neither was profiled, implicated in the commander’s statement, or judged to fail retention standards.  The hypertension was controlled on medications.  The diagnosis of migraines was made while in the MEB process; it was noted on the MEB addendum that the headaches were not incapacitating and had not caused a loss of duty time.  Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either 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 either contended conditions and so no additional disability ratings are 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.  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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension and migraine conditions, 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 20131226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXX,AR20160003962 (PD201401184)

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