RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01428
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090406

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Multichannel Transmission Operator/Maintainer, medically separated for “degenerative arthritis, lumbar spine,” with a disability rating of 10%.

CI CONTENTION:  The CI contends that his rating should be higher based on his limitations.  The CI’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 - 20081223	VARD - 20090502 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis, Lumbar Spine	5242	10%	Lumbar Degenerative Disc Disease	5243	10%	20090210	
 COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Degenerative Arthritis Lumbar Spine.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in November 2005 and worsened over time.  Imaging studies showed a small disc bulge at L5-S1 and a small tear in the annulus (fibrous tissue surrounding the disc).  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty, so the CI was referred for an MEB.  The MEB forwarded “chronic low back pain secondary to degenerative disc disease and annular tear” for PEB adjudication.

The NARSUM evaluation on 3 December 2008 (4 months prior to separation) reported that the CI experienced worse back pain with prolonged standing and sitting, any lifting or bending at the waist, or any impact activities.  He denied radiating pain, weakness, numbness, or tingling.  Physical examination showed a normal gait and spinal contour. Mild lumbar tenderness and painful motion were present, but there was no spasm or guarding.  Thoracolumbar flexion was 30 degrees (normal 90) and combined range of motion (ROM) was 145 degrees (normal 240).  There was no additional loss of motion after repetition.  A test for nerve root irritation was negative, and lower extremity neurologic findings were normal.  An MEB addendum on 23 December 2008 repeated a physical examination, which found a normal gait and spinal contour and no spinal tenderness or spasm.  Flexion was 90 degrees and combined ROM was 240 degrees.  Painful motion was present.

At the VA Compensation and Pension (C&P) evaluation on 10 February 2009 (2 months before separation), the CI complained of constant low back pain, stiffness and muscle spasm.  He denied incapacitation, but could not sit or stand for extended periods, and could not lift greater than 20 pounds.  He could vacuum, perform gardening activities and push a lawn mower.  Physical examination showed a normal gait and spine curves.  Tenderness was present but spasm was absent.  Flexion was 90 degrees and combined ROM was 240 degrees.   There was no painful motion and no additional limitation with repetitive motion.  Lower extremity neurologic findings were normal and testing for nerve root irritation was negative.   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5242 (degenerative arthritis of the spine), citing functional loss, painful motion and tenderness.  The VA rated the back condition 10% coded 5243 (intervertebral disc syndrome), based on the C&P examination 2 months before separation, citing tenderness not resulting in abnormal gait or spinal contour.  Members agreed that the probative value of the NARSUM ROM examination was compromised by the absence of objective findings (such as guarding or muscle spasm) which could corroborate the significantly reduced flexion.  It was also less proximal to the time of separation than the MEB addendum and VA C&P examinations.  The latter two examinations were therefore assigned preponderant probative value in determining a rating recommendation.  Although these examinations documented no limitation of motion to support a 10% rating, that rating was justified by the presence of tenderness and painful motion.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 back condition.  

BOARD FINDINGS: In the matter of the degenerative arthritis, 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.  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 20140322, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

18 AUG 2016

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, AR20160007286 (PD201401428)

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