RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02461
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080707

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Human Resources Specialist, medically separated for “L4-5 para-median disc herniation”; with a disability rating of 20%.  

CI CONTENTION:  He was diagnosed with TBI and PTSD by the VA.  His 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:  

IPEB - Dated 20080313	VA* - (~7 Mos. Pre/Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 Left Paramedian Disc Herniation	5243	20%	L4-5 Disc Herniation	5242	0%	20090331	
RATING:  20%	RATING:  10%	

ANALYSIS SUMMARY:  

Lumbar Spine Herniated Disc.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in October 2005 after being struck by an Improvised Explosive Device (IED) while driving a combat vehicle.  Diagnostic studies revealed lumbosacral degenerative arthritis and single level disc protrusion.  Electro-diagnostic studies performed in January 2008 revealed findings suggestive but not diagnostic of a very mild left S1 radiculopathy.  There was no surgical indication.  Despite conservative treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  At the MEB examination dated 12 February 2008, 5 months prior to separation, the CI reported daily low back pain (LBP) extending into the right leg associated with intermittent numbness.  He endorsed the inability to perform his duties, lift more than 20 pounds, run, jump, or climb.  His physical examination (PE) revealed a normal gait with slight favoring of the right side.  There was tenderness, spasm and spinal flattening about the lumbosacral spine.  Thoracolumbar range of motion (ROM) was significantly decreased and painful.  There were no radicular signs extending into the buttocks, hips, or legs.  At the VA Compensation and Pension (C&P) examination dated 31 March 2009, 9 months after separation, the CI reported a constant aching and sharp LBP extending into his left leg and aggravated by physical activity and lifting.  Moderate pain relief was achieved by rest and medication.  He denied associated numbness, loss of bladder/bowel control, or painful incapacitating episodes.  All spinal-focused PE parameters at the VA examination were normal excepting the onset of pain at terminal, but normal ranges of motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 20% coded 5243 (intervertebral disc syndrome), citing limitation of motion.  The VA rated the condition at 0% coded 5242 (degenerative arthritis), based on the VA C&P examination 9 months after separation, citing pain on motion.  
 
The Board first deliberated on the probative value of the examinations in evidence as well as the totality of the STR.  The documented limitation of flexion at the MEB NARSUM examination of 35 degrees (flexion) was the single piece of data that supported the 20% impairment rating.  The Board agreed that a 20% rating, but not higher, was justified for the limitation of flexion of greater than 30 degrees but not greater than 60 degrees as reported on the MEB NARSUM examination.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  Radiographic and electro-diagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (MEB NARSUM and VA C&P) proximate to separation 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 is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the low back 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 20140521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXX AR2016001 0936 (PD201402461)

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