RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02119
BRANCH OF SERVICE:  Army	BOARD DATE:  20140912
SEPARATION DATE:  20071127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (88M/Transportation Cargo Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “intervertebral disc degeneration” by the MEB was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “lumbosacral strain” as unfitting, rated at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting lumbosacral strain condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20071009	VA - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Lumbar Spine Strain	5237	20%	20080206	
Other x0 (Not in Scope)	Other x8 (Not in Scope)	20080206	
Rating:  10%	Combined:  100%	
*Derived from VA Rating Decision (VARD) dated 20080530 (most proximate to date of separation)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Lumbar Spine Condition.  The narrative summary prepared approximately 3 months prior to separation noted that the CI had a history of chronic low back pain since May of 2006.  He was involved in a motor vehicle accident and developed pain 3 weeks after the injury.  Since that time, his pain had been persistent without relief with physical therapy, rest and non-steroidal anti-inflammatory medicines.  He also underwent epidural steroid injections which failed to relieve his symptoms.  He was evaluated by a neurosurgeon and was not a surgical candidate.  He felt that his symptoms were severe to the point that he could not perform the duties required of him as a Cargo Specialist.  A magnetic resonance imaging study was performed and revealed a herniated disc at L4-5, which produced some nerve root impingement when combined with the degenerative changes also at L4-5.  The pertinent physical exam findings are summarized in the chart below, most notably is that the range-of-motion (ROM) measurements were obtained using an inclinometer.  

At the VA Compensation and Pension (C&P) exam (performed 2 months after separation), the CI reported his main symptoms were pain and stiffness.  He did complain of some burning, aching type pain that radiated down his legs that was relieved by rest and medications.  He denied any incapacitation due to his back pain.  The physical exam findings are summarized in the chart below.

The two 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)	Ortho ~ 9.5 Mos. Pre-Sep	PT ~6.5 Mos. Pre-Sep	VA C&P ~ 2 Mos. Post-Sep	
Flexion (90 Normal)	“Normal”	20	50	
Combined (240)	-	120	200	
Comment	Pos. painful motion & tenderness; No spasm; Normal gait, strength & reflexes	Inclinometer used; Pos. painful motion & tenderness; No spasm, guarding, or abnormal spinal contour; Normal gait	Goniometer used; Pos. painful motion & tenderness; No spasm; Normal gait &posture; Neg. straight leg raise bilaterally; Pos. Deluca criteria	
§4.71a Rating	10%	40%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA applied VASRD code 5237, lumbosacral strain.  While the PEB rated it 10% citing tenderness to palpation and pain limited motion, the VA rated it 20% citing the ROM values documented on the C&P examination.  The general rating formula for diseases and injuries of the spine takes into account pain whether it radiates or not and requires goniometric ROM measurement IAW §4.46, accurate measurement.  The only goniometric exam present for review by the Board is the C&P exam, which also happened to be the exam accomplished most proximate to separation.  Board members agree that the VA’s C&P exam was the most probative exam for basing its rating recommendation.  Based on the ROM measurements documented in the C&P exam and after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbosacral strain 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating lumbosacral strain was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the lumbosacral strain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbosacral Strain	5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140510, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150006347 (PD201402119)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA