RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04244
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Patient Administration Specialist, medically separated for “low back pain” with a disability rating of 10%.

CI CONTENTION:  His back and shoulders are getting worse.  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 - 20090124	VARD - 20090924	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Intervertebral Lumbar Discs At L4-L5 and L5-S1	5243	10%	Degenerative Disc Disease, L4/5 and L5-S1 S/P Laminectomy/Discectomy w/Residual Right Leg Radiculopathy	8529-5243	10%	20090526	
Left Shoulder Tendonitis	Not Unfitting	Left Shoulder Partial Thickness Rotator Cuff Tear, W/Supraspinatus Tendonitis S/P Repair	5201-5024	10%	20090526	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Herniated Intervertebral Lumbar Discs at L4-L5 and L5-S1.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent two back surgeries in August 2006 and June 2008 for a herniated right disc at L5-S1 and a small right paracentral disc herniation at L4-L5 respectively.  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 physical exam (recorded on DD 2808) dated August 2008, 8 months prior to separation, showed positive tenderness and rigidity in the lower spine area.  Leg lift (for radicular symptoms) was positive on both sides 3 degrees (unspecified symptoms).  

A physical therapy range-of-motion (ROM) evaluation conducted in September 2008, 7 months prior to separation and 2 months after surgery, documented forward flexion of 90 degrees (normal 90) with combined 190 degrees (normal 240).  There was localized tenderness, no spasm or guarding, no swelling or muscle atrophy, and no abnormal gait due to muscle spasm or guarding.  

The NARSUM written in October 2008, 6 months prior to separation, indicated that the CI reported he did well following his second surgery and claimed that his radiculopathy had improved.  The NARSUM referenced the above examinations.  

At the VA Compensation and Pension (C&P) examination on 26 May 2009, performed 1 month after separation, the CI reported improved radicular symptoms following his second surgery, but that he still had intermittent radicular pain down his right leg; he had not lost any time at work due to his back condition.  The CI denied bowel or bladder dysfunction.  There were no reported incapacitating periods in the past year other than the June 2008 surgery.  Physical exam showed normal posture and gait.  ROM was limited by pain to forward flexion of 80 degrees (normal 90) with combined 195 degrees (normal 240); with reported fatigue, weakness, and lack of endurance following repetitive use.  Provocative tests for radiating symptoms (Lasegue’s and straight leg raise) were positive.  Motor, sensory and reflex testing was normal.  The examiner stated that there were right leg radicular symptoms in the distribution of the sciatic nerve.  

The PEB assigned a 10% rating coded 5243 (intervertebral disc syndrome), citing combined ROM criteria and consideration of functional loss.  The VA also assigned a 10% rating coded 8529-5243 (external cutaneous nerve of thigh analogous to intervertebral disc syndrome) based on the VA C&P examination 1 month after separation, citing ROM criteria and “criteria for rating diseases and injuries of the spine apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  

The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all of the examinations in evidence.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

Although the CI had intervertebral disc disease there were no 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 a herniated disc with radicular pain treated twice with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and no fixed sensory deficits.  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.  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 back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that left shoulder tendonitis 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 left shoulder condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The left shoulder condition was reviewed and considered by the Board.  The service treatment records and NARSUM indicated the CI injured his non-dominant left shoulder in 2001 and underwent surgery in June 2002.  He did well post operatively, had not required a profile since his post-operative period, and stated that the shoulder condition had “not restricted his duties.”  There was no performance based evidence from the record that this condition 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 left shoulder condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left shoulder condition, the Board unanimously recommends no change from the PEB determination 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 20141105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

28 JUL 2016

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 XXXXXXXXXXXXXXXXXXXX, AR20160010232 (PD201404244)

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