RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02060
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060802

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Calvary Scout) medically separated for a back condition.  The condition could not be adequately rehabilitated to satisfy the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain, with history of herniated disc at L5-S1, with associated left lower extremity radiculopathy, status post neurosurgery,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Five other conditions (see chart below) was submitted by the MEB.  The Informal PEB adjudicated “Intervertebral disc syndrome…,” as unfitting, rated 10%, of AR 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests all conditions be considered.  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 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:  

IPEB - Dated 20060630	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome…	5243	10%	Residuals, S/P Microdiskectoy…HNP	5243	20%	20061130	
			Scar, Low Back….HNP	7804	10%		
			Radiculopathy, LLE…HNP	8720	10%		
Microhemuria	Not Unfitting	No VA Entry	
Left Renal Cyst		Left Renal Cyst and Congenital Duplication …	7533	**NSC	20061130	
Depression		Major Depressive Disorder	9434	30%		
Heart Murmur		Functional Heart Murmur, Asymptomatic	7099-7005	**NSC		
Smoker		No VA Entry	
Other Conditions x 0 (Not In Scope)	Other x 60	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20061220 (most proximate to date of separation [DOS]).  ** Not service connected.

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome Condition.  The CI presented with a 4-month history of lower back and rip hip pain in June 2005.  Radiographic evaluation demonstrated mild scoliosis, lumbar spondylosis, and a herniated lumbosacral disc.  The CI was treated with narcotic medication, activity, modification, and physical therapy.  He continued to experience lower back and bilateral lower extremity pain.  An electromyogram performed in January 2006 was negative.  The CI underwent spinal surgery to decompress the sacral nerve root in March 2006.  Two months after the surgical intervention the CI continued to report chronic lower back pain.  The narrative summary (NARSUM) noted that the CI received epidural steroid injections postoperative without relieve of his low back pain which radiated to his upper left leg and buttock.  The CI reported 1-2/10 baseline lower back pain which increased to 4-7/10 with activity.  He also reported pain radiation into his upper left leg and buttock.  He used a Fentanyl patch for pain management.  The examiner noted physical findings of pain in all planes of motion, mild lumbar spine tenderness to palpation, and no palpable spasms.  The MEB examiner noted a normal neurological examination.  At the VA Compensation and Pension (C&P) examination performed 3 months after separation, the CI reported daily lower back pain which radiated down the left leg.   The baseline pain was rated 4/10 and increased to 8/10 for several hours with activity.  Left lower extremity numbness, tingling, and burning in the left thigh were also reported.  He denied incapacitating episodes.  The physical examination demonstrated a normal gait, pain limited range of motion (ROM), mild decreased sensation to light touch at the left lateral foot, and positive radiculopathy maneuvers.  Diagnoses of chronic low back pain, recurrent lumbosacral disc herniation, and left lower extremity radiculopathy were rendered.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~2 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Flexion (90 Normal)	78,70,72	80	
Extension (30)	18,19,23	20	
Combined (240)	210	200	
Comment	AO	AO	
§4.71a Rating	10%	10% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA coded 5243 (intervertebral disc syndrome).  The PEB rated the condition at 10% for ROM limited by pain and localized tenderness.  VA rated the condition at 20% for pain starting at 60 degrees of forward flexion.  The Board considered whether the evidence supported a higher than 10% rating.  The Board noted that the thoracolumbar ROM, normal gait, and normal spinal contour did not support a higher rating.  The Board considered whether the radiculopathy could be reasonably justified as separately unfitting.  The Board determined that the negative EMG and absence of physical findings of motor dysfunction supported that the radiculopathy could not be reasonably justified as separately unfitting for additional disability rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic low back pain condition was appropriately recommended in this case.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that micro-hematuria, benign left renal cyst, mild situational depression, heart murmur, and smoking were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The micro-hematuria, benign left renal cyst, mild situational depression, heart murmur were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.  

Smoker.  Smoking does not constitute a physical disability and is not compensable or ratable.

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 pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left lower extremity radiculopathy condition, the Board unanimously agreed that is was not unfitting.  In the matter of the contended micro-hematuria, benign left renal cyst, mild situational depression, heart murmur, and smoking conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140508, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AH RC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXX AR20160004371 (PD201402060)

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