RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03822
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Infantry, medically separated for “lumbar intervertebral disk syndrome,” with a disability rating of 20%.

CI CONTENTION:  “Multiple issues not addressed by Army when separated…such as PTSD, TBI, tinnitus, joint degeneration (arthritis), chronic headaches.”  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 - 20081023	VARD - 20091218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Intervertebral Disk Syndrome	5243	20%	Mechanical Low Back Pain	5237	10%	20090421	
Bilateral Knee Pain, Resolved	Not Unfitting	Patellar Tendonitis and Bursitis, Left Knee	5099-5024	10%	20090421	
		Patellar Tendonitis and Bursitis, Right Knee	5099-5024	0%	20090421	
History of Concussion Without Sequela	Not Unfitting	Memory Impairment, Residuals of TBI	8045	10%	20090421	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Lumbar Intervertebral Disk Syndrome.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain with radiating symptoms began in December 2006 while deployed carrying full combat load, without a specific injury.  Diagnostic imaging performed in February 2008 revealed a moderate spinal disk protrusion at L4-L5 possibly affecting the associated traversing nerve roots.  The CI reported low back pain (LBP) with bilateral lower extremity radicular symptoms to the back of his thighs.  Surgery was not indicated and conservative treatment to include spinal injections relieved his extremity symptoms but the back symptoms remained unchanged.  His minimal symptom improvement did not allow the continuation of unrestricted duty.  The MEB forwarded “chronic LBP with L4-L5 bulging disk.”  The MEB NARSUM examination on 29 September 2008 (4 months prior to separation) noted complaints of back pain and continued significant difficulties with carrying weight, prolonged standing, and impact activities.  His physical examination revealed decreased and painful motion as well as tenderness about the thoracolumbar spine.  There was no evidence of local spasms and distal reflexes and strength were normal.  

At the VA Compensation and Pension (C&P) examination on 21 April 2009 (3 months after separation) the CI reported back pain aggravated by a variety of body positions and activities.  He denied having VASRD-defined episodes of incapacitation in the last 12 months.  On examination there were muscle spasms present as well as decreased and painful motion of the thoracolumbar spine.  Upon repetition, there was a further decrease in ROM.  His gait remained normal.  Maneuvers for radicular signs were negative and distal reflexes and strength were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under code 5243 (intervertebral disc syndrome), citing limitation of forward flexion to 43 degrees.  The VA assigned a 10% rating using code 5237 (lumbosacral strain) based on the VA C&P examination 3 months after separation.  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) reported on the NARSUM examination.  The Board also considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome and concluded that VASRD criteria of physician prescribed timed bedrest was not in evidence.  Additionally, there was no associated radiculopathy for a separate peripheral nerve rating.  While the CI may have initially experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that 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 Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral knee pain, resolved and history of concussion without sequela 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 bilateral knees and concussion condition were not profiled and were not judged to fail retention standards.  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  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 bilateral knees or concussion without sequela contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral knees and concussion without sequela 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, 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 20140812, 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 AR20160009368 (PD201403822)

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