RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04071
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080320

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3, Military Police, medically separated for “L4-5 disc protrusion…” 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 upon a 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 - 20090220	VARD - 20081031	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 Disc Protrusion	5243	10%	Back Pain, Spasms, and Tenderness	5237	NSC	STR	
Exercise Induced Asthma	Not Unfitting	Asthma	6600	NSC	STR	
Anemia	Not Unfitting	No VA Placement	
Dysmenorrhea	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	
*Derived from VA Rating Decision (VARD) dated 20081031 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lower Back Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back condition began in June 2007 after participating in a unit 6 mile run.  The MEB forwarded lumbar spondylosis (L5 S1) and herniated disc (L4 L5) for PEB adjudication.  At the MEB examination recorded on DD Forms 2807 and 2808 dated 1 November 2007 and 21 December 2007, respectively, 4 months and 3 months prior to separation, the CI reported  constant pain relieved with medications unless exacerbated by activity.  Magnetic resonance imaging study performed in September 2007 of the lumbar spine demonstrated mild disc protrusions with mild foraminal narrowing at L4-5 and L5-S1.  Physical therapy range-of-motion measurements performed 30 November 2007 noted full motion except for extension limited to 20 degrees (normal 30).  Physical examination performed in November 2007 demonstrated painful motion. Localized tenderness was elicited at the lower back area.  The CI had an abnormal gait secondary to using crutches for right leg pain.  An Electromagnetic Imaging Study (EMG) performed in December 2007 was normal.  No evidence of lumbar radiculopathy was noted. A focused examination of the back in December 2007 demonstrated an antalgic gait and hesitancy with heel and toe walking.  The CI walked with a single crutch.  The CI did not show up for the VA Compensation and Pension (C&P) examination on 17 September 2008.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the L4-5 disc protrusion without motor neurologic deficit condition 10%, coded 5243, intervertebral disc syndrome, citing consideration of additional functional loss due to repeated flare-ups, forward flexion is 97 degrees.  The VA rated back pain, spasms and tenderness condition 0% coded 5237, lumbosacral or cervical strain, based on the CI did not keep the appointment for VA examination in September 2008.  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.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  Multiple treatment notes attributed the CI’s use of crutches for ambulation to the right leg pain.  The Board noted a negative EMG for right lower extremity radiculopathy.  The Board therefore determined that the antalgic gait was not attributable to her lower back pain condition for a 20% rating for lower back pain resulting in an antalgic gait.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the lower back condition was appropriately recommended in this case.

Contended PEB Conditions:  Exercise induced asthma, anemia and dysmenorrhea.  The exercise induced asthma, anemia and dysmenorrhea were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  They 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 lower back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended exercise induced asthma, anemia and dysmenorrhea 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 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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
, AR20160017813 (PD201404071)

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