RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02195
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated for “lumbosacral strain” with a disability rating of 20%.  

CI CONTENTION:  CI contended he should have received a rating of 30% for his back condition.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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:  

SERVICE PEB - 20090127	VARD - 20100325	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	20%	Lumbar Spine, Status Post Discectomy with Scar	5237	40%	20091124	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lumbosacral strain condition began in May 2007 after lifting another soldier during training.  Diagnostic imaging (MRI) studies on 6 September 2007 and 28 March 2008 showed degenerative disc disease at L5-S1 with S1 spinal nerve root involvement.  Lumbar discectomy surgery was performed 21 May 2008.  An MRI of 20 September 2008 showed post L5-S1 discectomy with a post-operative scar or granulation tissue that impinged on the S1 spinal nerve root.  
Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain status post L5-S1 discectomy with residual radiculopathy of the left leg,” for PEB adjudication.  

During the MEB examination on 24 November 2008, 5 months prior to separation, the CI reported that prior to surgery he had radiating leg pain, which resolved following surgery; however, he had intermittent numbness in the three lateral toes of his left foot, and back pain of 5/10.  The physical examination showed slow ambulation with tenderness to palpation of the paraspinal muscles.  Thoracolumbar range of motion (ROM) recorded goniometric forward flexion of 45 degrees which decreased to 40 degrees with repetition and was limited by pain.  

At the 24 November 2009 VA Compensation and Pension (C&P) evaluation, performed 7 months after separation, the CI reported constant lower back pain that was aggravated by physical activity (prolonged walking) and stress, and relieved by medication (Baclofen, Tramadol, and muscle relaxers).  The physical examination showed normal posture, gait, strength, and spinal contour.  There was no muscle spasm or guarding of movement, and although it was noted that the examination revealed evidence of radiating pain to the left buttock on movement, the examination did not reveal any weakness in the back and left buttock musculature.  The thoracolumbar forward flexion ROM was recorded at 30 degrees, and there was additional limitation after repetitive use.  Radiographs dated 24 November 2009 showed good alignment throughout the lumbar spine with disc spaces preserved and vertebral body height maintained.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbosacral strain condition 20%, coded 5237 (lumbar spine strain), citing limitation of forward flexion.  The VA rated the lumbosacral strain condition 40% and also applied the same 5237 code (lumbar spine strain), based on the VA C&P examination 7 months after separation, citing limitation of forward flexion.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), reported on the MEB NARSUM examination, 5 months prior to separation.  

The limitation of thoracolumbar motion at the MEB examination supported the 20% rating adjudicated by the PEB.  The Board discussed the worsened limitation of motion at the VA C&P examination 7 months after separation; however, this examination was not proximate to separation and the Board placed greater probative value on the MEB examination.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported radiating pain which was responsive to epidural injection therapy.  The NARSUM examination revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

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 for the lumbosacral strain condition.  

BOARD FINDINGS:  In the matter of the lumbosacral strain 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.  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 20140417, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160011780 (PD201402195)

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