RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03597
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Radio and Communications Security (COMSEC) Repairer, medically separated for “chronic low back pain” with a disability rating of 20%.  

CI CONTENTION:  The CI asserts that upon discharge he was only rated at 20 percent for his back and did not receive a rating his PTSD.  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 - 20081015	VARD - 20090803	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with L2-S1 Disc Herniation and Radiculopathy of L5	5243	20%	Status Post Hemilamincetomy with Right Sided Radiculopathy	5239	20%	20081211	
			Scar Lumbar Spine	7804	0%		
Gastroesophageal Reflux Disease	Not Unfitting	Gastroesophageal Reflux Disease	7346	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain with Radiculopathy.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began with no specific injury or trauma, in August 2005 while deployed to Iraq.  He underwent his first laminectomy (nerve “decompression” surgery) in August 2006.  An MRI in February 2008 demonstrated multilevel (L2-S1) disc herniation with some impingement of the S1 nerve root.  He underwent a second surgery, an L5-S1 discectomy (surgery to remove herniated disc material) with laminectomy, in May 2008.  Electrophysiologic studies performed in October 2008 documented no evidence of radiculopathy.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain with L2-S1 disc herniation and radiculopathy of L5” for PEB adjudication.  

During the MEB examination (recorded on DD Forms 2807 and 2808) dated July 2008, 6 months prior to separation, the physical examination showed a well-healed surgical scar, and decreased flexion.  At the time of the physical therapy (PT) clinic appointment in August 2008, 5 months prior to separation, the CI reported constant pain and numbness.  On examination, the examiner recorded tenderness of the back, a well-healed surgical scar, and a lumbar flexion “reduced by 50%.”  At a second PT appointment in August 2008 (3 weeks later), the examiner documented a normal gait and spinal contour, and tenderness without muscle spasm or guarding.  Flexion was to 60 degrees (normal 90) with no further decrements after repetition.  

At the 11 December 2008 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported constant pain.  The physical examination showed a normal gait and spinal contour, and tenderness without muscle spasm or guarding.  Flexion was to 60 degrees with evidence of pain on motion.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5243 (intervertebral disc syndrome), citing localized tenderness and painful motion, 60 degrees of forward flexion, and no evidence of radiculopathy.  The VA also rated the low back condition at 20% coded 5239 (spondylolisthesis or segmental instability), based on the VA C&P examination 2 months pre-separation, citing pain, decreased motion, and x-ray evidence.  The VA did not assign a separate rating for radiculopathy citing “no findings on EMG or on examination.”  The Board considered the descriptions and measurements listed at the two separate PT examinations in August 2008 in comparison to the December 2008 VA C&P examination.  The Board adjudged that the examinations more proximate to separation that documented actual measured ranges of motion were more accurate in describing the CI’s disability at separation and agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  

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 treated with surgery, and there were symptoms of radiating pain documented in the treatment records.  An electro-diagnostic study showed no evidence of neuropathy or radiculopathy.  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 low back condition.  

Contended PEB Condition:  Gastroesophageal Reflux Disease (GERD).  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

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.  In the matter of the contended GERD condition, 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 20140730, 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 XXXXXXXXXXXXXXXXXXXX, AR20160014208 (PD201403597)

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