RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03823
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090904

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Infantry, medically separated for “spinal fusion,” with a disability rating of 20%.

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 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:

IPEB - Dated 20090629	VA* - (~1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion	5241	20%	DDD S/P Diskectomy and Fusion L4-5 with Right Lower Extremity Radiculopathy	5243	20%	20090924	
PTSD	Not Unfitting	PTSD, Anxiety Disorder and Adjustment Disorder	9411	0%	20090924	
Mild Hyperlipidemia	Not Unfitting	No VA Placement	
Intermittent Headaches	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20091202 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Spinal Fusion.  The CI first reported low back pain (LBP), which was not associated with antecedent trauma, in 2006.  He was managed conservatively with duty restrictions and medications, including steroid injection which did not help.  The CI also participated in physical therapy and was under the care of a pain specialist.  His pain persisted and he underwent radiographic studies and had two magnetic resonance images (MRIs) of the spine.  His most recent MRI was performed in April 2008 revealed a herniated disc at L4-L5.  He had discectomy with fusion surgery at that level in June 2008.  However, he continued to experience low back pain and was referred to the Medical Evaluation Board (MEB).  Post surgery X-rays of the lumbar spine in November 2008 noted the hardware was in good position.  At the MEB narrative summary (NARSUM) dated 15 April 2009, 11 months post- surgery, the CI reported he currently has pain mainly in his right buttock, but also to a lesser degree in the lumbar midline.  He states that his pain is “achy dull” most of the time but he experience sharp pain if he is more active.  His pain is daily.  He is unable to run, or walk more than a mile and a half, or stand more than 30 minutes, or sit more than 2 hours due to pain.  Laying down and taking his narcotic medications improves his pain.  Physical examination of the back documented the presence of well-healed, non-tender surgical scar over the lumbar spine.  There was tenderness in the right buttock, and radicular symptoms were absent.  Range of motion (ROM) recorded forward flexion was 60 (normal 90) out of 4 trials and it was noted that pain was present during testing.  Extension was limited to 25 degrees (30).  Neurological examination demonstrated absence of motor or sensory deficits, and normal muscle strength.

The VA Compensation and Pension (C&P) examination was accomplished a month after separation.  The CI reported his pain occurs daily and has the characteristic of radiating to the right lower extremity from the right buttock producing numbness in the right buttock and right great toe.  Physical examination documented absence of radicular symptoms, normal muscle strength and normal neurological exam (no motor or sensory loss of function).  ROM flexion was documented at 50 degrees and extension at 25 degrees.  De Luca criterion was absent.

The Board directed attention to its rating recommendation based on the above evidence.  Both the VA and PEB rated the condition at 20%, but used different codes.  The PEB used the spinal fusion code 5241 (Spinal fusion), and the VA used code 5243 (Intervertebral disk syndrome).  The higher rating of 40% under code 5241 requires forward flexion of the thoracolumbar spine of 30 degrees or less; not supported by the evidence.  The Board also considered code 5243; however, this code did not seem appropriate since there was no evidence of functional limitation related to his reported symptom of numbness in the right buttock and pain radiation.  Additionally, there were no documented incapacitating episodes due to back issues.  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 spinal fusion condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD [posttraumatic stress disorder], hyperlipidemia, and headache 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 NARSUM noted that the CI was medevaced from Iraq due to his back condition. He reported that he was exposed to IED [improvised explosive device] blasts and frequent mortars, and that mortars landed anywhere from “30-70 meters away.”  He also noted that he never had loss of consciousness, but did have headaches that started after he returned from Iraq.  Service treatment records indicated that he was seen by mental health and was initially diagnosed with adjustment disorder with anxiety, followed by the diagnosis of anxiety disorder NOS [not otherwise specified], and due to his cognitive complaints, he was also assessed with mild cognitive and memory deficits.  In November 2008, he was diagnosed with mild-moderate PTSD and within a month of this diagnosis the same psychiatrist noted that his condition was in remission with medication.  Evidence of continued participation in treatment was absent beyond December 2008, and the VA documented the CI had not received outpatient treatment since separation and his use of psychotropic medication had been discontinued.

The Board next reviewed the headache and mild hyperlipidemia conditions.  The treatment records noted the last neurology note in February 2009 documented “headaches not recently problematic despite discontinuation of gabapentin”.  The CI was discharged from treatment with the recommendation to return as needed. The record showed the CI had mildly elevated cholesterol and triglycerides that were managed via nutritional counseling and surveillance.

The Board noted that none of the above contended conditions were profiled and none were implicated in the commander’s statement.  None was judged to fail retention standards.  There was no performance based evidence from the record that any of the above contended 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 conditions of PTSD, hyperlipidemia and headaches, and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the spinal fusion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD, hyperlipidemia and headache 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 20140822, 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 AR20160009373 (PD201403823)

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