RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03702
BRANCH OF SERVICE:  Army	                        SEPARATION DATE:  20031125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-4, Infantryman,  medically separated by the Informal Physical Evaluation Board (PEB) for “degenerative disc disease, bulging discs, and spondylosis, lumbar spine,” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 based on 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 - 20031008	VARD - 20040308  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Pain	5237	10%	Thoracolumbar Spine Injury	5237	20%	20040202	
Cervical Bulging Disc	Not Unfitting 
	Cervical Spine Arthritis	5010	0%	20040202	
Spondylosis		NO VA PLACEMENT				
Previous Disc Herniation…		NO VA PLACEMENT				
Episode of Epididymitis		Left Testicle Epididymitis	7525	NSC	20040202	
Hypertension		Hypertension	7101	0%	20040202	
Mild to Mod OAD		Chronic Obstructive Pulmo Dis	6602-6604	10%	20040202	
Partial Cubital Tunnel Syn		Left Arm Diffuse Early Peripheral Neuropathy	8515	0%	20040202	
Bilateral Plantar Fasciitis		L and R Foot Plantar Fasciitis	5284	0%	20040202	
Remote Fracture, R Tib-Fib		Right Leg Tibia/Fibula Fracture	5262	NSC		
R Flank Stab Wound		NO VA PLACEMENT				
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Back Condition.  According to Service treatment records and the MEB narrative summary (NARSUM), the back condition began approximately 11 months prior to referral for MEB.  The CI was walking down stairs on 7 August 2002 when his feet gave out and he fell and struck his upper back.  A lumbar spine diagnostic imaging (X-ray) study showed a small anterior osteophyte (reactive bony outgrowth) at L4, but was otherwise normal and a thoracic spine X-ray was normal.  An orthopedic surgery back exam revealed paraspinal muscle (T1-T12) tenderness with no bony step-offs or skin changes.  Range of motion (ROM) values were flexion of 20 (90 normal), extension of 20 (30), bilateral lateral flexion of 20 (30), bilateral rotation of 20 (30), and total of 120 (240) degrees.  The straight leg raise (SLR) tests (assess for herniated disc causing sciatic nerve root [L5-S1] radiculopathy) were negative.  Strength, sensation, and deep tendon reflexes (DTRs) were normal and pathologic reflexes were absent.  The assessment listed musculoskeletal mid-back pain secondary to direct trauma (fall on back).  A limited thoracic spine diagnostic imaging (MRI) study showed postsurgical changes, disc disease (desiccation and bulging), and no other evidence of abnormality.  A lumbar spine MRI showed postsurgical and spondylitic (spine degenerative disease) changes, disc disease, with no significant spinal stenosis (narrowing) and no neural foraminal (nerve root opening) narrowing.  

The 8 July 2003 NARSUM, 5 months before separation, documented a history of chronic low back pain status post an L4/L5 laminectomy (excision of portion [lamina] of vertebral body) in 1985.  The CI exacerbated his back pain in a fall on the stairs.  He complained of continued upper and lower back pain, neck discomfort, left leg discomfort, left arm discomfort, and limited ROM.  Symptoms disturbed his sleep, were exacerbated by bending and sitting, and were not improved by physical therapy (PT), exercises, anti-inflammatories, and muscle relaxants.  The NARSUM listed no physical exam findings.  The examiner cited the findings of the X-ray and MRIs.  The diagnosis listed lumbar spine degenerative disc disease, bulging discs, and spondylosis.  The lumbar ROM values measured by PT for the MEB were flexion of 20 (90), extension of 20 (30), right lateral flexion of 15 (30), left lateral flexion of 20 (30), right rotation of 20 (30), left rotation of 15 (30), and total of 110 (240) degrees.  A MEB addendum cited the findings of the PT for MEB ROM measurement.  

The 2 February 2004 VA Compensation and Pension (C&P) exam, 2 months after separation, recounted the history of laminectomy and mid-back injury from fall.  The CI complained of chronic low back pain, muscle spasms, and sleep related problems that did not improve with PT and NSAIDs.  The physical exam documented an erect posture and a slow and deliberate gate with no ambulatory aides used.  The thoracic/lumbar spine exam revealed a slightly decreased lumbar curvature and a non-tender, hypo-pigmented, L1-S1 scar.  There was bilateral thoracic and lumbar paraspinal muscle tenderness and T9 point tenderness.  The CI reported pain with ROM, but facial grimacing was not observed, and there was no guarding of movements.  The thoracic/lumbar ROM values were flexion of 50 (90), extension of 20 (30), right lateral flexion of 18 (30), left lateral flexion of 12 (30), bilateral rotation of 25 (30), and total of 150 (240) degrees.  Provocative tests for radiculopathy were variably positive.  Strength, sensation, and deep tendon reflexes (DTRs) were normal.  The diagnosis listed normal thoracic spine, minimal degenerative osteoarthritis of L4-L5 post laminectomy site, and no objective evidence of degenerative disc disease or degenerative joint disease of the entire spine.  

At an 11 August 2004 neurosurgery evaluation, 9 months after separation, the CI complained of persistent pain in the area where he struck his upper back in a fall.  The physical exam documented a normal gait.  The back exam revealed a normal lumbar curve and a well-healed, non-tender surgical scar from L3-S1.  There was midline tenderness centered at T10 and no paraspinal muscle spasm.  Lumbar spine ROM was full.  The bilateral SLR tests were negative.  Strength, sensation, and DTRs were normal and pathologic reflexes were absent.  Lumbar and thoracic spine X-rays were negative, except for narrowing of the L4-5 interspace.  The impression listed local post-traumatic fibromyositis (chronic muscle inflammation with overgrowth of connective tissue).  The neurosurgeon opined that the CI had sustained no spinal cord or nerve injury, there was no evidence of fracture, and that the CI might benefit from trigger point (tender loci which refer pain) injection with local anesthetic and corticosteroid.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain) citing remote history of L4/L5 laminectomy in 1985, chronic thoracolumbar pain following injury in August 2002, degenerative joint and disc disease, no spinal stenosis, no neuroforaminal encroachment, no radiculopathy, no muscle spasm, and combined thoracolumbar passive ROM of 130 degrees.  The VA assigned a 20% rating under the 5237 code (lumbosacral strain) based on the VA C&P exam 2 months after separation, citing severe pre-service low back injury with laminectomy in 1985, upper back complaints following a fall on stairs, no evidence of low back condition on VA exam other than narrowing consistent with old L4-5 injury, ROM, and no objective evidence of degenerative disc or joint disease in the entire spine.  The ROM values in the neurosurgery exam were full and did not attain the minimum 10% (flexion of greater than 60 degrees but not greater than 85 degrees; or a combined ROM of greater than 120 degrees but not greater than 235 degrees of the thoracolumbar spine).  The ROM values in the C&P exam were consistent with the 20% rating (flexion of greater than 30 degrees but not greater than 60 degrees; or a combined ROM of not greater than 120 degrees of the thoracolumbar spine).  The ROM values in the orthopedic surgery and PT for MEB exams were consistent with the 40% rating.  The ROM values in serial exams showed interval improvement to full ROM.  

Recognizing the temporal relationship to the date of separation, the board considered the relative probative value of the proximate exams.  The Board assigned more probative value to the C&P exam because it documented thoracic/lumbar (thoracolumbar) spine ROM measurements, in more precise 1 degree increments, while the PT for MEB exam documented lumbar spine ROM, and the orthopedic surgery exam did not specify spine location.  The neurosurgery exam documented lumbar spine ROM was full.  The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  There were no incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  While the proximate exams documented tenderness, and the C&P exam documented “slightly decreased lumbar curvature,” there was no evidence of muscle spasm, abnormal spinal contour, or abnormal gait.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the low back condition, coded 5237.  

Contended PEB Conditions:  
Cervical Bulging Disc, Spondylosis, Previous Disc Herniation Status Post Laminectomy, Lumbar Spine Spondylosis, Epididymitis, Hypertension, Obstructive Airway Disease, Partial Left Cubital Tunnel Syndrome, Bilateral Plantar Fasciitis, Healed Remote Right Tibia-Fibula Fracture, and Healed Right Flank Stab Wounds.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended 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.  The contended conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic bacdk condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  

In the matter of the contended cervical bulging disc, spondylosis, previous disc herniation status post laminectomy, lumbar spine spondylosis, epididymitis, hypertension, obstructive airway disease, partial left cubital tunnel syndrome, bilateral plantar fasciitis, healed remote right tibia-fibula fracture, and healed right flank stab wounds 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.  

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	
Chronic Thoracolumbar Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140807, 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 XXXXXXXXXXXXXXXXXX AR20160014212 (PD201403702)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA