RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02285
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Tanker, medically separated for “intervertebral disc syndrome” with a disability rating of 20%.

CI CONTENTION:  The CI contends for his unfitting back, his five not unfitting conditions, and conditions not identified by either the MEB or PEB which he received a rating from the VA.  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 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:

SERVICE PEB - 20091001	VARD - 20100730	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome	5243	20%	DDD, Lumbosacral Spine…	5242	40%	20100113	
Esophageal Reflux	Not Unfitting	GERD	7399-7346	10%	20100113	
Insomnia	Not Unfitting	PTSD	9411	30%	20100104	
Right Shoulder Pain	Not Unfitting	Right Shoulder Impingement	5201-5203	10%	20100113	
Headaches	Not Unfitting	Migraines	8100	50%	20100113	
Pes Planus	Not Unfitting	Bilateral Pes Planus…	5276	10%	20100113	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:

Intervertebral Disc Syndrome (Low Back).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s fell off a tank in 2003 and reinjured his back after a second fall in 2007.  He deployed to Iraq a third time in 2007 and was treated with non-steroidal anti-inflammatory drugs and muscle relaxants while in theater.  Upon return in 2009 he was treated with chiropractic care, physical therapy (PT) and epidural injections for pain.  Radiographic imaging showed minimal intervertebral disc disease (degeneration) at L4-5 and L5-S1.  Serial exams in the STR within the year before separation noted full or nearly full range of motion (ROM) of the back.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, he was given an L3 physical profile and referred for an MEB.  The MEB forwarded “chronic low back pain, L5-S1 degenerative disc disease” to the Physical Evaluation Board (PEB) for adjudication.

At the MEB NARSUM examination in September 2009, 2 months before separation, the CI reported chronic low back pain.  The examination revealed spinal tenderness and muscle spasm.  After three repetitions, ROM flexion was 35 degrees (normal 90) and total combined ROM was 145 degrees (normal 240) with painful motion.

During the VA Compensation and Pension (C&P) examination in January 2010, 2 months after separation, the CI reported chronic low back pain with episodic spasms, stiffness and limited ROM.  The examination revealed spinal tenderness with normal muscle tone and no atrophy.  After repetitions, lumbar/lower thoracic ROM flexion was 20 degrees (normal 90) and total combined ROM was 130 degrees (normal 240) with painful motion.  The VA examiner indicated that the CI refused to attempt to forward flex further than 20 degrees due to pain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned the condition a 20% rating coded 5243 (intervertebral disc disease), citing limitation of thoracolumbar (TL) spine forward flexion of 33 degrees.  The VA assigned the condition a 40% rating also coded 5242 (degenerative arthritis of the spine) based on the VA C&P examination 2 months after separation which documented TL spine forward flexion of 30 degrees.

The Board noted the MEB NARSUM examination supports a 20% rating while the VA C&P examination supports a 40% rating; both based on limitation in motion.  However, the C&P examiner indicated that the CI refused to attempt forward flexion further than 20 degrees due to pain and the Board did not find evidence of an injury or trauma prior to separation which would limit the CI’s forward flexion to 30 degrees or less to render a 40% spine rating recommendation.  The Board majority determined the MEB NARSUM examination was more indicative of the CI’s back condition at separation because all of the ROM examinations in the STR rendered a 10% spine rating based on limitation of flexion (greater than 60 degrees but not greater than 85 degrees).  The Board considered the totality of the evidence and concluded that the CI’s back condition supports no higher than a 20% rating at separation.  Additionally, the Board did not find evidence of incapacitating episodes resulting from the intervertebral disc syndrome with which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which significantly interfered with satisfactory duty performance at separation; therefore, an additional rating is not recommended.  After due deliberation, and in consideration of all 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 intervertebral disc syndrome condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that esophageal reflux, insomnia, right shoulder pain, headaches and pes planus were not unfitting.  The contended esophageal reflux, insomnia, headaches and pes planus conditions were not profiled.  The right shoulder condition was given a permanent U2 profile.  A ‘2’ profile designation indicates a condition that may require some physical limitations, but is not in all cases disqualifying for continued military service.  None of the contended conditions was implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended that esophageal reflux, insomnia, right shoulder pain, headaches and pes planus 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.  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 20140423, 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 AR2016001 0922 (PD201402285)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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