RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX  	CASE:  PD-2014-03660
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070713

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Aircraft Structural Repairer, medically separated for “chronic low back pain…,” with a disability rating of 0%.

CI CONTENTION:  He was given a higher rating for his conditions by 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 - 20070326	VARD - 20071101	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	0%	Lumbar Degenerative Disc Disease	5243	20%	20071002	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%	20071002	
Hemorrhoid	Not Unfitting	External Hemorrhoids	7336	0%	20071001	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI experienced an atraumatic onset of low back pain in 2002.  Magnetic resonance imaging suggested early degenerative disc disease, but no neurologically significant pathology.  There was no description of radicular symptoms in the STR; multiple neurological examinations were normal with none to the contrary; and, surgery was not recommended.   There were STR entries describing grossly normal range of motion (ROM) with none indicating severe ROM limitation, and there was no STR documentation of incapacitating episodes.  Despite a protracted trial of conservative treatment, the condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military occupational specialty and he was referred for an MEB.  The MEB forwarded “lumbargo” [sic] for PEB adjudication.  The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  
Thoracolumbar ROM
(Degrees)	MEB ~5 Mos. 
Pre-Sep	VA ~3 Mos. Post-Sep	
Flexion (90 Normal)	 (Average 33) 35	60	
Combined (240)	115	210	
§4.71a Rating	20% (PEB 0%)	20%	

The MEB NARSUM examination on 14 February 2007 (5 months prior to separation) noted complaints of back stiffness and spasms, with specific denial of radicular symptoms.  The physical examination recorded a normal gait, “inappropriate” tenderness, and normal neurological findings (5/5 strength all groups).   Formal ROM measurements for the MEB by physical therapy are charted above.

At the VA Compensation and Pension (C&P) examination on 2 October 2007, performed 3 months after separation, the CI reported “moderate” daily pain with intermittent left sciatic radiation and paresthesias (not corroborated in outpatient STR).  The CI also reported being able to walk more than 1/4 mile but less than a mile, with no incapacitating events in the last 12 months.  The physical examination recorded normal gait and spinal contour, tenderness, and normal neurological findings (motor, sensory, and reflexes).  Measured ROM by the VA is charted above, and documenting no degradation with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5237 (lumbosacral strain) was supported by Army Regulation (AR) 635-40 (B-29, e), but was not compliant with VASRD §4.71a criteria for the Service ROM which supported a 20% rating.  The VA rated 20% under code 5243 (intervertebral disc syndrome), citing limitation of forward flexion from the C&P examination.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and combined ROM (not greater than 120 degrees) reported on the NARSUM and VA examinations.   There was no evidence for incapacitating episodes which would support a higher rating under that formula; and, there was no evidence for a ratable neuropathy linked to fitness in support of additional Service rating on that basis.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the lumbar spine condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine headache and hemorrhoid conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  There was compelling Service and VA evidence that the migraine headaches did not interrupt duty.  The absence of hemorrhoids was documented on the MEB DD Form 2808 physical examination, and a mild acuity was described by the post-separation VA C&P examiner.  It was further noted that neither condition achieved a compensable rating by the VA.  Neither of these conditions was profiled; neither was implicated in the commander’s statement; and, both were judged to meet retention standards.  There was no performance-based evidence from the record that either of the 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 migraine headaches or hemorrhoids; thus, no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended migraine headache and hemorrhoid 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160008707,  XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.   I have reviewed the Board's
, recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure