RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02000
BRANCH OF SERVICE:  Army	BOARD DATE:  20150616
Seperation date:  20080923

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Radar Repairer) medically separated for degenerative arthritis of the spine.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but was authorized to perform an alternate physical fitness test per PROFILE.  He was issued a permanent L3S2 profile and referred for a Medical Evaluation Board (MEB).  The “intervertebral degenerative disc disease lumbar with low back pain (LBP) and radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (“vascular headaches and major depression”) for PEB adjudication.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “degenerative arthritis of the thoracolumbar spine” as unfitting, rated 10% with likely 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 condition(s) continue to worsen and negatively impact his daily activities.  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/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 20080903	VA* - Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of Thoracolumbar Spine	5242	10%	Intervertebral Degenerative Disc Disease, Lumbar with Low Back Pain and Radicular Symptoms	5243	0%	**STR	
Other x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20120302 (most proximate to date of separation [DOS]).  CI failed to report for C&P dated 20120209.

ANALYSIS SUMMARY:  

Thoracolumbar Spine Condition.  Absent direct or indirect trauma, the CI first reported intermittent LBP with right leg symptoms in March 2008.  Diagnosed with sciatica, he was treated with medication.  A magnetic resonance image revealed L4-5 disc protrusion with “some nerve root displacement.”  He was not a surgical candidate and his treatment remained conservative to include epidural steroid injections.  Despite such treatments, his painful symptoms remained.  He was permanently profiled in July 2008 and referred to a MEB.  At the MEB narrative summary examination on 27 August 2008, (a month prior to separation) the CI endorsed a constant dull (6-7/10) LBP with extending right-sided leg symptoms.  Additionally, he reported right foot numbness and tingling in his toes.  He denied buttock numbness or bowel/bladder changes.  His physical examination revealed lumbosacral tenderness, decreased range-of-motion (ROM), and decreased light touch sensation about the top of his right great toe and mid-foot, as well as the bottom portion (near the heel) of the right foot.  The examiner noted that Waddell signs were present.  His diagnosis was listed as intervertebral disc disease, lumbar, with chronic LBP and radicular symptoms.

There was no VA C&P examination in the case file.  A remote VARD (proximate to separation) indicated that the CI was a “no show” for his examination and therefore, the VA assigned a 0% rating.  The goniometric ROM evaluation in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~2 Mo. Pre-Sep
	MEB ~1 Mo. Pre-Sep
	
Flexion (90 Normal)	(75) 75/78/72	“appeared normal”	
Combined (240)	220	-	
Comment	painful motion 	 (+) tenderness	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition differently, they both utilized similar codes of 5242 (degenerative spinal arthritis) and 5243 (intervertebral disc disease) with ratings of 10% and 0%, respectively.  Board members agreed that sufficient evidence of painful motion was present to justify the rating of 10%, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.59 and §4.71a.  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’s adjudication for the low back condition.

The Board additionally considered if the symptomatic right lower extremity radiculopathy symptoms warranted an additional disability rating; but, members agreed that the requisite link of the neuro-sensory symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that any radiculopathy condition or neuro-sensory deficits could not be recommended for additional disability ratings.

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 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 20140506, 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, AR20160000557 (PD201402000)

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