RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02140
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheel Vehicle Mechanic) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3S1 profile and referred for a Medical Evaluation Board (MEB).  “Degenerative disk disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition that met retention standards (adjustment disorder) for PEB adjudication.  The Informal PEB adjudicated “chronic subjective back pain due to lumbar degenerative disk disease without neurologic abnormality” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI asks that 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 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 20040607	VA* - (~1 Week Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain due to Lumbar Degenerative Disk Disease without Neurologic Abnormality…	5299-5292	10%	Degenerative Disc Disease, Lumbar Spine	5243	10%	20040803	
			Sciatica, right lower extremity	8520	10%	20040803	
Adjustment Disorder	Not Unfitting	Adjustment Disorder with Anxiety	9440	10%	20040824	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20050103 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Degenerative Disk Disease.  The narrative summary noted the CI had a several year history of low back pain (LBP) with periodic lower extremity (LE) pain.  Notes in the service treatment record indicated that the CI initially reported LBP after loading a truck in 2001, which was treated conservatively and did not fully resolve.  He was subsequently involved in a motor vehicle accident (MVA) in February 2003 and reported increased LBP with radiation to the right LE (RLE).  Lumbar X-rays in 2002 noted scoliosis of the lumbar spine.  Lumbar spine magnetic resonance imaging (MRI) following the MVA reportedly noted degenerative disc disease (DDD), with diffuse disc bulging, without nerve impingement or spinal canal stenosis.  Frequent treatment visits for episodes of increased back pain were documented in service treatment record, but the LBP was noted to be “resolving well” in April 2003.  Following reported aggravation of symptoms by therapy in June 2003, (about a year prior to separation) the CI was noted to have episodes of decreased range-of-motion (ROM) with muscle spasm or acute pain.  Four episodes of flare-ups with muscle spasm were documented, and at two additional visits, the CI received injections for treatment of acute pain.  At a neurosurgical (NS) consult on 31 March 2004 the CI reported LBP that radiated to the bilateral LE, with numbness and tingling (N/T) in his feet.  The NS consult noted that physical therapy (PT) and spinal manipulation did not help and epidural injections were only temporarily helpful.  The CI was taking anti-inflammatory and pain medications regularly and had been advised previously that no surgery was indicated.  The exam noted ROM of flexion of 10 degrees (normal 90) and combined ROM of 130 degrees (normal 240).  Lower extremity strength, sensation, and reflexes were normal with negative straight leg raise testing bilaterally.  A repeat MRI reportedly showed “severe” DDD and the NS agreed that no surgery was indicated and recommended continued PT, evaluation by a physical medicine specialist, and the CI was given a back brace.  Other than the NS evaluation above and PT ROM noted by the MEB exam below, no other ROM was documented in degrees in the service treatment record (STR).  Normal gait was frequently documented, but on exams with noted muscle spasm, no reference was made to gait.  Notes indicated electrodiagnostic studies (EMG/NCV) were pending, but there was no report or further reference to the results in the STR.  Quarters were documented for two episodes of 72 hours total duration in August 2003.  

At the MEB exam 23 March 2004, 4 months prior to separation, the CI reported LBP with intermittent leg pain.  The MEB physical exam noted the CI was neurologically intact with normal strength, sensation and reflexes of the bilateral LEs.  The MEB examiner, an orthopedic surgeon, indicated the CI was unlikely to improve without surgery, but agreed it was reasonable to postpone surgery due to the CI’s age.  PT ROM 13 May 2004 noted trunk flexion of 50, 55, and 55 degrees and combined ROM of 185, 195, 190 degrees.  A primary care note in the STR after the DOS indicated the CI reported LBP and RLE pain and numbness and requested referral to a civilian orthopedic surgeon.

At the VA Compensation and Pension (C&P) exam 3 August 2004, a week after separation, the CI reported that NS consultation during the service did not recommend surgery and an EMG in service was normal.  The CI reported constant LBP rated 6-7/10, with numbness in the RLE intermittently, with daily use of a back brace.  He reported minimal relief from anti-inflammatory medications and recent resumption of narcotic pain medications (which he had stopped because he thought he was having withdrawal symptoms).  The exam noted normal posture and gait.  There was lumbar tenderness with thoracolumbar (TL) ROM of flexion of 70 degrees and combined TL ROM of 190 degrees, with painful ROM.  Lower extremity strength, sensation and reflexes were reported as normal in one section of the exam, without decreased sensation in a distribution consistent with a single spinal nerve.  Lumbar X-rays noted “minimal” scoliosis and was otherwise normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5292 (limited motion, lumbar spine).  The VA rated the back condition 10%, coded 5243 (intervertebral disc syndrome).  The Board notes that the PEB utilized a VASRD code no longer in use on the DOS.  VASRD codes for rating the spine were changed effective 26 September 2003 and the VA utilized a current VASRD code.  IAW DoDI 6040.44, the Board must base its rating recommendations on VASRD rating guidelines in effect on the DOS, and the Board did so.  The Board considered that the evidence at the MEB exam supports a 20% rating IAW current VASRD rules for rating the spine for “forward flexion greater than 30 degrees but not greater than 60 degrees,” and the evidence at the VA C&P exam (within a few days of separation) supports a 10% rating for flexion greater than 60 degrees and combined ROM greater than 120 degrees, with no muscle spasm or guarding.  The Board deliberated how to reconcile the discrepancy between the ROM at the two exams.  The Board concluded from the widely varying ROM documented in the STR that TL ROM was not permanently limited to less than 30 degrees of TL flexion, as required by the 40% rating, but was frequently decreased by “flare-ups.”  As noted above the notes which documented muscle spasm did not indicate whether the CI had a normal gait or spinal contour at the time, however, with the significant lumbar muscle spasm noted during each exacerbation, it can be reasonably assumed gait would have been abnormal.  Therefore, although the C&P exam was the most proximate exam to separation, Board consensus was that the evidence in record supports that the disability due to the low back condition was more closely approximated by the 20% than the 10% rating IAW VASRD §4.40 (functional loss) and §4.7 (higher of two evaluations), coded 5243 (in compliance with the VASRD at the time of separation).  The Board reviewed to see if coding as 5243 and rating according to incapacitating episodes resulted in a higher evaluation than 20%.  There were only 72 hours of quarters documented in the available records.  However, even if it is conceded that the CI was may have been incapacitated more than 3 days, which does not meet the threshold for a 10% rating, there is no evidence in record to suggest incapacitation of a total duration of greater than 4 weeks in the year before separation, required for the next higher evaluation of 40%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.40, and §4.7, the Board recommended a disability rating of 20% for the low back condition, coded 5243.   

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported intermittent LE pain (primarily RLE) and N/T, but strength, sensation, and reflexes were normal throughout the record.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.
 
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the adjustment disorder (d/o) condition was 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 DD Form 2808, Report of Medical Examination, dated 5 January 2004 noted a diagnosis of depression/anxiety with an S1 profile assigned.  The examiner noted the CI was treated with an antidepressant and anti-anxiety medication and reported difficulty sleeping due to pain.  The CI was evaluated by psychiatry 14 January 2004 for the MEB.  The psychiatrist indicated the CI had never been seen by mental health services in the past, but had been prescribed antidepressant medications by his primary care provider in December 2003 for mild depressive symptoms related to “frustrations with his unit, his medical board and his back pain.”  The diagnosis was adjustment d/o with depressed mood and he reportedly took medication only intermittently.  The psychiatrist indicated the CI met retention standards for the mental health (MH) condition.  

IAW DoDI 1332.38, enclosure 5, an adjustment d/o is a condition that does not constitute a physical disability and is not eligible for Service rating.  However, regardless of specific diagnosis, the Board noted that no MH condition was profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance based evidence from the record that the adjustment d/o, or any MH condition, 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 adjustment d/o or to recommend any MH condition as unfitting for continued military service at the time of separation, and so no additional disability rating is recommended.

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.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended adjustment d/o condition, the Board unanimously recommends no change from the PEB determination as not unfitting and agrees that it cannot recommend any MH condition for additional disability rating.  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:  

CONDITION	VASRD CODE	RATING	
Lumbar Spine Degenerative Disc Disease	5243	20%	
RATING	20%	

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

DEPARTMENT OF THE ARMY

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 XXXXXXXXXXXXXXXXXXXXX, AR20160004373 (PD201402140)

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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization 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:

CF:
( ) DoD PDBR
( ) OVA