RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01347
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091219 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for a lumbar spine condition that could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile (allowing for an alternate aerobic event to satisfy physical fitness standards) and referred for a Medical Evaluation Board (MEB).  The diagnoses “L5-S1 paracentral disc herniation” and “lumbar back pain” were forwarded as the only submissions to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “intervertebral disc syndrome” as unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant makes not specific contention.  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 (specifically the referenced PTSD) 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 20091014	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome	5243	20%	Disc Herniation  L5-S1	5243-5237	10%	20100325	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20100506 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Lumbar Spine Condition.  There is scant temporally probative evidence in the available service treatment record (STR), although a 2004 entry documented treatment of back pain and spasm; and, the few entries proximate to separation corroborated the history in the narrative summary (NARSUM) of an onset of back pain in July 2007 during a deployment to Afghanistan.  The CI completed the deployment, but the pain persisted and magnetic resonance imaging from April 2009 (8 months pre-separation) demonstrated disc disease (degenerative disc L4 and L5, central protrusion at L5/S1 with some right foraminal stenosis).  Surgery was discussed but decided against, and the pain did not improve sufficiently with conservative treatment (including epidural steroid injection).  There were no range-of-motion (ROM) observations documented in available outpatient STR entries; but, the MEB’s DD Form 2808 medical examination (4 months pre-separation) recorded “limited ROM to 45% flexion [~40 degrees]”  There were no STR entries indicating significant radicular symptoms, positive neurological findings, or incapacitating episodes.

The NARSUM was conducted 17 September 2009 (3 months pre-separation) and documented “pain 100% of the time, with today's pain being at 6 of 10 intensity” (no mention of radicular symptoms) and function limited to a “variety of light details.”  The NARSUM physical examination recorded a normal gait, “moderate” spasm, and normal neurological findings except for a sensory deficit over the right foot (distal L5 dermatome).  The NARSUM measured ROM was 30 degrees flexion (normal 90) and combined ROM of 110 degrees (normal 240). 

A VA Compensation and Pension (C&P) orthopedic examination was conducted 25 March 2010 (3 months post-separation) and is supplemented by a general medical C&P examination from a month earlier (23 February 2010).  These documented employment as a truck driver (his MOS) with “moderate ... daily” pain and intermittent right sciatic radiation but no subjective weakness or poor coordination.  The VA physical examination (findings consolidated from both C&P examiners; no inconsistencies) recorded a normal gait, normal spinal contour, the absence of spasm, and normal neurological findings (no sensory deficit).  The VA measured ROM was 80 degrees flexion and 190 degrees combined.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 for its 20% rating under code 5243 (intervertebral disc syndrome) acknowledged the NARSUM flexion of 30 degrees (at the cusp of the VASRD §4.71a threshold for a 40% rating), but also cited the DD Form 2808’s flexion evidence.  The decision elaborated the findings and functional evidence, and concluded, “As the pathology does not support the limitation of forward flexion, rated for the combined ROM of the thoracolumbar spine not greater than 120 degrees.”  The VA’s 10% rating was consistent with §4.71a criteria for the C&P ROM evidence and associated findings.  The Board carefully deliberated whether the flexion documented in the NARSUM was sufficient to justify a 40% rating recommendation, with consideration of the totality of the evidence.  The NARSUM and C&P ROM measurements were both compliant with VASRD §4.46 (accurate measurement) and were equally probative with regards to temporal proximity to separation.  The significant difference indicated rapid improvement over the 6-month interval encompassing separation; and, members agreed that it was logical to conclude that at separation (the Board’s rating benchmark as above) the ROM had improved to the point that it no longer met the 30-degree 40% threshold.  The only available corroborative evidence (the DD Form 2808 observation) is consistent with the 20% criteria of §4.71a; and, members agreed that the nature of the pathology and preceding clinical course were somewhat incongruent with the severe ROM limitation reflected by the NARSUM.  Additionally the functional evidence (normal gait, capacity for light duties on active duty, rapid civilian transition to employment akin to MOS) is not compatible with such severe ROM limitation as the ratable baseline.  Members concluded, therefore, that the isolated ROM measurement of flexion to 30 degrees on the day of the NARSUM examination did not carry sufficient probative weight as the sole support for a higher rating recommendation.    

The Board considered whether additional rating could be recommended under a peripheral nerve code for the radicular symptoms; but, members agreed that neither the functional link to fitness requisite for rating, nor the presence of a VASRD ratable deficit, were supported by the evidence.  There is no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 determinative 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, undated, 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 XXXXXXXXXX, AR20160003989 (PD201401347)

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