RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01639
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090604  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Trainee) medically separated for a lumbar spine condition that could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic low back pain with central disc protrusion/herniation was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “intervertebral disc syndrome L4-5 with disc desiccation and central disc herniation and left sided neural foraminal narrowing” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  

CI CONTENTION:  “Not all my disabilities were considered.”  Her 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/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 20090324	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome …	5242	10%	Herniation of L4-L5	5237	10%	20090930	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4 	
RATING:  10%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20100223 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an atraumatic onset of low back pain with training about a year prior to separation.  The pain did not respond adequately to treatment and magnetic resonance imaging (MRI) demonstrated degenerative disc disease (“small” central herniation at L4/5 with possible left neural encroachment).  There were no significant radicular symptoms and multiple STR entries confirmed normal neurological findings (5/5 strength) with none to the contrary.  Additionally, an orthopedic consultant recommended against surgery.  The condition did not respond adequately to a trial of epidural steroid injections and further conservative measures.  There were some STR entries which noted non-specifically decreased range-of-motion (ROM) and others observing grossly normal ROM, but none which suggested severe limitation.  There was STR confirmation of normal gait and spinal contour (no evidence to the contrary) and there was no STR documentation of incapacitating episodes.

The NARSUM was conducted 5 March 2009 (3 months pre-separation) and documented constant baseline pain rated 3/10 which was “10/10 at its worst,” specifically noting the absence of radicular symptoms.  The examiner noted functional limitations with running, lifting over 20 pounds, sitting longer than 60 minutes, standing longer than 40 minutes, and walking over 1/2-mile.  The NARSUM physical examination recorded a normal gait, “mild” tenderness, and normal neurological findings with 5/5 strength.  The NARSUM cited physical therapy ROM measurements of flexion to 90 degrees and combined ROM of 225 degrees (normal 240).  

A VA Compensation and Pension (C&P) examination was conducted 30 September 2009 (4 months post-separation) and documented “pain every day...sitting the pain is 4/4...when she walks...10/10,” noting the absence of radicular symptoms and a walking tolerance to 100 feet.  The VA physical examination did not comment on gait, contour, tenderness or spasm (another contemporary VA examiner documented a normal gait), but recorded normal neurological findings with 5/5 strength.  The VA examiner documented ROM as flexion “to about 75-80 degrees” with normal 30-degree excursions for extension and bilateral flexion (no documentation of rotational plane).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under 5242 (degenerative arthritis of the spine) was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA’s 10% rating under 5237 (lumbar strain) was consistent with the C&P evidence.  There is no ROM evidence supporting a rating higher than 10%, no evidence of gait or spinal contour abnormality in support of a 20% rating, no evidence of additionally ratable peripheral nerve impairment, and 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 record or 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, dated 20140414, 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 XXXXXXXXXXXXXXXXXX, AR20160003256 (PD201401639)

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