RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02943
BRANCH OF SERVICE:  Army	BOARD DATE:  20150526
Separation Date:  20090207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Airborne Infantryman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain (LBP) with degenerative disk disease (DDD) at L3-4 and L4-5” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (adjustment disorder) for PEB adjudication.  The Informal PEB adjudicated his back condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition (adjustment disorder) was determined to be not compensable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 20081120	VA* - Service Treatment Records (STR) and VA Record	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP with DDD at L3-4 and L4-5	5299-5243	10%	DDD, Lumbar Spine	5242	0%	Missed Exam	
Adjustment Disorder	Not Compensable	Post-Traumatic Stress Disorder (PTSD)	9411	10%	20100805	
Other x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20101005 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic LBP with DDD at L3-4 and L4-5 Condition.  The CI injured his lower back when his vehicle rolled over in November 2006.  He experienced an electrical shock that radiated from his lower back down his left leg.  A lumbosacral spine magnetic resonance imaging (MRI) demonstrated a left large disc protrusion (herniated disc-HNP) at L4-5 and a moderate central disc protrusion at L3-4.  He continued with the left leg pain, weakness and fatigue and was diagnosed with a lumbar radiculopathy at L5.  Orthopedist evaluation in June 2007 noted that the CI continued with LBP that radiated to the left buttock.  There were physical exam findings of pain limited motion with a normal motor and sensory and reflexes.

A Neurosurgeon MEB consult evaluation in August 2008 noted that the CI had failed physical therapy and steroid injections, and consult indicated that the CI “had improvement since a radiofrequency rhizotomy procedure (damage or destroy targeted nerves by needle radio wave generated heat).  He still has back pain but the radicular component has improved.”  The motor, sensory and reflex exams were all normal.  The MEB narrative summary exam approximately 5 months prior to separation documented that the CI continued to have LBP which was exacerbated by twisting, lifting, bending and sneezing and limitations in sitting, standing and walking.  He had flares that occurred once daily for approximately 2 hours caused by prolonged standing and walking.  There were range-of-motion (ROM) physical exam findings based on an average of three repetitions of flexion limited to 70 degrees (normal 90) and a combined 205 degrees (normal 240).  There was a normal gait and the CI was able to heel walk and toe walk.  There was tenderness; and mild lumbar muscle spasm.  Strength was “5-/5 weakness of left foot dorsiflexion” with all other muscle groups with normal 5/5 strength.  Reflexes and sensory testing were normal.  A VA treatment entry 8 months after separation noted some lumbar tenderness and a repeat back MRI demonstrated multilevel DDD without central stenosis.  The CI did not show for his scheduled (August 2010) VA Compensation and Pension exam for his spine condition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the LBP condition as 5299 analogous to 5243 (Intervertebral disc syndrome) and rated at 10%.  The VA coded the lumbar spine condition as 5242 (degenerative arthritis of the spine) and rated at 0% based on the STR citing a missed exam.  The “General Rating Formula for Diseases and Injuries of the Spine” considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The CI had a forward flexion of 70 degrees and combined ROM of 205 degrees which met the 10% rating criteria of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined ROM greater than 120 degrees but not greater than 235 degrees.  There was no evidence of more limited ROMs, incapacitating episodes, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour for any rating above 10%.  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 chronic LBP with DDD at L3-4 and L4-5 condition without the addition of a peripheral neuropathy condition.

The Board next considered if there was an unfitting residual peripheral nerve condition.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was episodic finding of left foot dorsiflexion weakness of 5-/5 which did not impact gait or heel and toe walking and there were no sensory or reflex deficits.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional Service disability rating on this basis.

Contended PEB Conditions.  The contended condition adjudicated as not compensable by the PEB was adjustment disorder.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s adjudication that it was “not compensable, although it may be administratively unfitting.”  IAW DoDI 1332.38, Enclosure 5, in effect at the time, “adjustment disorders” are “conditions which do not constitute a physical disability” and are therefore not compensable under the DoD disability evaluation system.  The Board concluded that the PEB adjudication for adjustment disorder was correct and, therefore, no additional disability rating can be 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic LBP with DDD at L3-4 and L4-5 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended adjustment disorder condition, the Board unanimously recommends no change from the PEB determination as not compensable.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140612, 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, AR20150015246 (PD201402943)

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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA