RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-04000
BRANCH OF SERVICE:  Army                                                                  SEPARATION DATE:  20090822

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Construction Equipment Repairer, medically separated for “lumbosacral strain…” with a disability rating of 10%.  

CI CONTENTION:  The CI requested consideration of 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:  

SERVICE PEB - 20090727	VARD - 20091103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain…	5237	10%	Herniated Lumbar Disc L4-L5 and L5-S1	5243	20%	20091020	
			L5 Radiculopathy…	8599-8521	10%	20091020	
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20091020	
Adjustment Disorder with Anxiety	Not Unfitting	No VA Placement	
Insomnia	Not Unfitting	No VA Placement	
Gastritis	Not Unfitting	No VA Placement	
Allergic Rhinitis	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition initially began in November 2005 after heavy lifting, a fall, and wear of combat gear.  Radiographic imaging (MRI) in April 2007 documented herniated discs at L4-L5 and L5-S1 vertebral levels.  It was reinjured in July 2008 after a vehicle accident in Afghanistan.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain” for PEB adjudication.  

At two visits to physical therapy (PT) in January and April 2009 (7 and 4 months pre-separation), physical examination showed thoracolumbar flexion to 70 degrees (normal 90) and to 90 degrees, respectively.  At two other PT visits in January and February 2009, physical examination showed ranges of motion that were “within normal limits.”  At two separate visits to orthopedics in November 2008 and February 2009, physical examination showed flexion to be “good” and “normal.”  Strength and sensation were all normal.  There was STR documentation of intermittent painful motion and intermittent spasms, however, no abnormal gaits were in evidence.  There was no STR documentation of incapacitating episodes requiring bed rest prescribed by a physician.  

On the MEB DD Form 2808 dated 8 April 2009 (5 months pre-separation), the examiner documented tenderness with decreased range of motion of the lumbar spine, and evidence of radiation with nerve tension testing.  The MEB Narrative Summary (NARSUM) exam was performed on 25 June 2009 (2 months pre-separation).  The CI reported chronic pain that prevented performance of the physical fitness test.  The physical examination showed a normal gait and curvature; tenderness without spasms, with “moderately restricted” extension, and “mildly restricted” flexion.  Strength and neurologic testing were normal.  Range of motion measurements by physical therapy (same day) documented flexion of 80 degrees with painful motion.  

At the VA Compensation and Pension (C&P) examination dated 20 October 2009 (2 months after separation), the CI reported no use of assistive devices and no incapacitating episodes.  He did reported weekly flare-ups (lasting overnight) caused by prolonged standing, walking, twisting, and repetitive bending.  The physical examination showed a flexion of 50 degrees, with painful motion, and no additional limitations after repetition.  There was abnormal spinal curvature (“moderate loss of reversal of the normal lumbar lordotic curvature”) with spasm, however the gait was normal.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the “lumbosacral strain” coded 5237 (lumbosacral strain) citing slight loss of motion (flexion of 80 degrees).  The VA rated 20% for the “herniated lumbar disc L4-L5 and L5-S1, coded 5243 (intervertebral disc syndrome), based on the VA post-separation examination that showed a flexion greater than 30 degrees but not greater than 60 degrees.  The VA also granted a 10% rating for an L5 radiculopathy of the left lower extremity, analogously coded 8599-8521 (external popliteal nerve, paralysis, incomplete, mild), and citing intermittent features of radiculopathy.  

The Board considered the evidence for rating.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees).  There was no STR documentation of flexion greater than 30 degrees but not greater than 60 degrees to support a higher rating.  There was no pre-separation evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour in support of a higher rating.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had two herniated discs; however there was no surgical indication.  There were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have 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 lumbosacral strain condition.  

Contended PEB Conditions:  Sleep Apnea, Adjustment Disorder with Anxiety, Insomnia, Gastritis and Allergic Rhinitis.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The Board noted that sleep apnea was the only one of the contended conditions profiled (P2); however, it was not implicated in the commander’s statement and was judged to meet retention standards.  None of the other contended conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions 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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea, adjustment disorder with anxiety, insomnia, and gastritis 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 20140617, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

30 NOV 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160017711 (PD-2014-04000)

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