RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02535
BRANCH OF SERVICE:  army	BOARD DATE:  20150120
SEPARATION DATE:  20070417

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Bradley Fighting Vehicle System Maintainer) medically separated for a lumbar spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his profile indicated he could take an alternate physical therapy (PT) test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Two conditions, characterized as “lumbar degenerative disc disease” and “left L5-S1 herniated disk, status post laminotomy and discectomy complicated by postoperative infection,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB appropriately consolidated the MEB diagnoses as a single unfitting condition (“chronic low back pain” elaborating surgical residuals), rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.  My disabilities including chronic pain have made it difficult to obtain and maintain sustained employment in the civilian workforce, caused a general decline in my quality of life, and have rendered me homeless several times.”

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 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 20070307	VA – Based on Service Treatment Record (STR) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain …	5299-5237	10%	Lumbar Laminectomy ...	5237	0%*	STR	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  0%	
Derived from VA Rating Decision (VARD) dated 20080303 (most proximate to date of separation [DOS]).
* Non-compensable rating “because you failed to report to your exam and we have no current clinical findings.”
ANALYSIS SUMMARY:

Lumbar Spine Condition.  There is an entry in the STR from August 2004 (during deployment to Iraq) documenting the onset of radiating low back pain (LBP) without known injury or precipitant, with a follow-up entry a month later in theater.  The CI was diagnosed with sciatica, treated with medication, and the deployment was completed.  The next entry in the available STR is an imaging report (magnetic resonance imaging) from July 2006 (9 months prior to separation) demonstrating disc disease (bi-level degenerative L3-5 and bulging L5/S1 with moderate stenosis).  Follow-up chiropractic notes document continuing back pain rated 7/10 with left leg radicular pain; and, note findings of spasm, tenderness, gait disturbance, and decreased (degree not specified) range-of-motion (ROM).  An orthopedic consult resulted in surgery on 21 September 2006 (L5/S1 laminectomy); which was complicated by a wound infection requiring surgical debridement and irrigation the following month (6 months prior to separation).  There are scant STR entries post-operatively, although it is documented that the CI underwent PT and rehabilitation; and, there is no evidence of further complications or any incapacitating episodes.  Formal ROM measurements for the MEB were conducted by PT on 9 February 2007 (2 months prior to separation), and recorded pain-limited flexion of 55 degrees (normal 90 degrees) and combined ROM of 185 degrees (normal 240 degrees).

The narrative summary was conducted soon afterwards on 22 February 2007, and, documented, “Since the patient's surgery, the patient continues to have constant low back pain, which is dull in nature.  He states his symptoms have improved and he has had improvement in his leg pain also.  He states his symptoms are aggravated by bending and standing, and lifting, and sitting.”  The physical exam recorded normal gait and spinal contour, positive spasm and tenderness, and normal neurological findings (5/5 motor strength).  As noted above, there is no temporally probative VA or other post-separation evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5237 (lumbosacral strain) was supported by the USAPDA pain policy, but was not consistent with VASRD §4.71a criteria for the PT ROM measurements.  The latter is the only formal ROM evidence before the Board in this case; and, the flexion of 55 degrees is a §4.71a criterion for a 20% rating.  The Board considered whether an additional rating could be recommended for the residual radiculopathy in evidence at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There were no sensory or motor deficits in evidence at separation; thus no functional implications are apparent.  With these considerations, members agreed that additional disability rating for neuropathy was not supported.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

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 the USAPDA pain policy for rating was operant in this case and it was adjudicated independently of that policy by this Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242, 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:

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Surgical Residuals, Lumbar Spine 	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140528, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150010613 (PD201402535)

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		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA