RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01345
BRANCH OF SERVICE:  Army	BOARD DATE:  20141114
SEPARATION DATE:  20080516

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13P/Fire Direction Specialist) medically separated for lumbar degenerative disc disease (DDD).  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “persistent lumbago status post L5/S1 laminectomy on 2 occasions,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (hypertension, hyperlipidemia, right ankle pain, and left knee pain) as medically acceptable to the PEB.  The Informal PEB adjudicated “lumbar degenerative disc disease” as unfitting, rated at 10%. The remaining conditions were determined to be not unfitting and were not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Due to back problems, I’ve had to seek out of pocket costs to chiropractors to alleve stress and pain.  It has also been difficult to maintain steady employment.” 

SCOPE OF REVIEW:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service 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.  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 lumbar DDD condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20080415	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD	5299-5242	10%	Laminectomy L-Spine w/DDD	5242	10%	20080718	
Other x 4 (Not in Scope)	Other x 15	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20080909 (most proximate to date of separation)

ANALYSIS SUMMARY:

Lumbar Degenerative Disc Disease.  The narrative summary (NARSUM) noted that the CI developed lower back pain (LBP) with radiation to the right leg in March 2004.  A nerve conduction studies in December 2004, revealed no evidence of neuropathy.  A magnetic resonance imaging (MRI) of the back, January 2005, revealed DDD with stenosis around the areas of the spinal nerves.  Back surgery was performed on 12 September 2005, with removed discs and released the areas of stenosis (laminectomy).  Post-operatively the CI did well with resolution of symptoms and was deployed to Iraq in 2006.  While in Iraq, symptoms of back pain, with radiation, returned.  A repeat MRI on 15 March 2007, revealed recurrence of the stenosis in the extreme low back area.  At a second surgical procedure on 20 August 2007, scar tissue in the area of the prior surgery was removed and the laminectomy, revised.  Post-operatively the surgical site healed but back pain, without radiation, persisted.  

At the MEB NARSUM exam on 21 March 2008 (2 months prior to separation), the CI reported daily back pain that flare-ups every 2 weeks.  The MEB physical exam, detailed in the chart below, demonstrated normal gait and posture, a well-healed surgical incision and normal motor strength with no radicular signs.  Sensation was normal save a small area of slightly decreased sensation on the inside left knee.  At the VA Compensation and Pension examination performed (2 months after separation), no complaints of numbness, tingling or weakness in his legs or painful flare-ups in his back.  The CI stated that he had no radiating pain since his second surgery.  On physical examination surgical sites were healed and non-tender.  Further details from this exam are presented below.  

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

ThoracolumbarAROM
(Degrees)	MEB ~ 4 Mo. Pre-Sep
(20080407)p.39	VA C&P ~ 2 Mo. Post-Sep
(20080718) p.171 & p.152	
Flexion (90 Normal/wnl)	100 pain at end motion	90 pain at end motion	
Extension (30)	20	20	
Combined (240)	230	240	
Comment	Gait and contour wnl; no spasms;  able to perform full squat	No spasm or point tenderness, gait posture wnl; motor wnl; 	
§4.71a Rating	10% pain	10% pain	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10% for painful motion using code 5242 (arthritis spine), IAW VASRD §4.71a.  A higher rating of 20% under this code requires forward flexion of the thoracolumbar spine of greater than 30 degrees, but less than 60 degrees.  The Board unanimously agreed that the MEB and VA examinations were equivalent and both supported a 10% rating for the back condition at time of separation for painful motion.  The Board unanimously agreed that the record in evidence did not support a compensable rating for the back condition using range of motion criteria.  The Board then reviewed other avenues for appropriate rating.  There was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, nerve conduction studies were negative and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under code 5293.  The Board unanimously agreed that the record in evidence did not support a compensable rating for scars, code 7804, as surgical scars were well healed, not tender and not irritated.  The Board found no other appropriate codes for consideration and no pathway for a rating higher than 10% for the back condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP 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 back 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 20140302, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150007678 (PD201401345)

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:

Encl			
			     XXXXXXXXXXXXXXX			
			     Deputy Assistant Secretary of the Army
			          (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA