RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04132
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Combat Engineer, medically separated “disc protrusions at L3-4, L4-5, L5-S1 and T11-12 without motor neurologic deficit” 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 - 20071220	VARD - 20081028	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Disc Protrusions at L3-4, L4-5, L5-S1 and T11-12 without Motor Neurologic Deficit	5243	10%	Lumbar Spine with Chronic Low Back Syndrome without Radiculopathy	5237	10%	20080421	
Major Depression	Not Unfitting	Major Depressive Disorder, Severe, in Remission	9434	0%	20080425	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Disc Protrusions at L3-4, L4-5, L5-S1 and T11-12 without Motor Neurologic Deficit.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1996 after an automobile accident that occurred prior to enlisting in the Army.  The CI’s induction physical showed that he had a normal spine.  He had minimal problems with his back until December 2006.  A magnetic resonance imaging (MRI) study done on 12 October 2007 showed degenerative disc disease with bulging intervertebral discs in the lumbosacral and thoracic spine.  Electrodiagnostic studies conducted on 16 February 2007 and 18 October 2007 showed mild denervation on the left which was consistent with the presence of lumbar radiculopathy.  Surgery was not warranted because too many levels of the CI’s spine were affected.  

At the physical therapy (PT) follow-up appointment on 25 September 2007, 4 months prior to separation, the CI reported no improvement with PT, traction, or using a TENS (electrostimulation) unit and that he only had 2-3 days of relief after receiving spinal steroid injections.  On examination he was able to forward flex his back until his fingers touched his mid tibia; he had 50% of normal extension [15 degrees]; and he had full bilateral rotation and lateral flexion [30 degrees in each plane of motion].  There was pain in all planes of motion and tenderness was noted in his lumbar paraspinal muscles.  He also had pain with straight leg raise testing which was indicative of radiculopathy.  

During the orthopedic visit on 9 October 2007, 3 months prior to separation, the CI reported that he had problems with walking and bending over to put on his boots.  The examiner noted a normal appearing spine with tenderness to palpitation but no muscle spasms.  The CI had a normal gait and range of motion (ROM) in all planes were normal.  His lower extremity strength, sensation and reflexes were also normal and examination maneuvers for radicular signs were negative.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and was referred for a MEB.  The MEB forwarded “lumbar spondylosis” and “herniated lumbar disc” for PEB adjudication.  

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	PT ~4 Mo. 
Pre-Sep	Ortho ~3 Mo. 
Pre-Sep	MEB ~2 Mo. 
Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	“to mid tibia”	“Normal”	45	70	
Combined (240)	Decreased	“Normal”	145	215	
Comments	Limited motion; painful motion; tenderness	Tenderness 	Limited motion; painful motion; tenderness	Limited motion; tenderness	
§4.71a Rating	10%-20%	10%	20%	10%	

At the MEB examination (recorded on DD Form 2807, 2808, and NARSUM) dated 7 December 2007, 2 months prior to separation, the CI reported that he “sometimes” had numbness and tingling in his feet.  He also reported that he had problems sleeping due to back pain.  The examiner recorded that the CI could not stand for long periods of time, run, jump, perform pushups and sit-ups, or lift and carry supplies and equipment.  Physical examination showed tenderness, painful motion, as well as limitation of motion as indicated in the chart above.  He had a normal gait and no spasm or guarding.  His lower extremity strength, sensation and reflexes were normal.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  

At the VA Compensation and Pension (C&P) examination on 21 April 2008, performed 3 months after separation, the CI reported lumbar pain with radiation to the left leg.  His pain was “precipitated and aggravated by sitting, standing, and walking” and he also had “a problem with long-distance driving.”  The CI stated that he had “sharp-type pain associated with some numbness in the left lower leg.”  He had some paresthesias (abnormal sensations), but no weakness or fatigue.  He also reported numbness in the right leg.  Physical examination showed tenderness and limitation of motion as indicated in the chart above.  He had no gross deformity or swelling in the thoracolumbar spine and there was no pain with motion.  His lower extremity strength, sensation and reflexes were normal and provocative maneuvers for radiculopathy were negative.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5243 (intervertebral disc syndrome), citing painful limitation of motion and tenderness.  The VA also rated the back condition 10% coded 5237 (lumbosacral strain), based on the VA C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. The Board considered the probative values of the various examinations in evidence.  The MEB examination was closest to the date of separation and the depicted disability aligned with the preponderance of evidence in the pre-separation record.  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.  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.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  The Board noted that the PEB appropriately combined the two spinal conditions forwarded by the MEB (lumbar spondylosis and herniated lumbar disc) into one thoracolumbar spinal condition.  In order to avoid pyramiding (§4.14) these two spinal conditions were not separately rated.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5243.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that “major depression disorder, recurrent (in remission)” was 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 major depression disorder was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   It was reviewed and considered by the Board.  There was no performance-based evidence from the record that his major depression significantly interfered with satisfactory duty performance.  After due deliberation, and 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 this contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended major depression disorder, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Disc Protrusions at L3-4, L4-5, L5-S1 and T11-12 without Motor Neurologic Deficit	5243	20%	

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 AR20160011597 (PD201404132)

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