RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04328
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081011

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Indirect Fire Infantryman, medically separated for “low back pain” with a disability rating of 10%.

CI CONTENTION:  He was not evaluated for PTSD, TBI or an arm injury.   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 - 20080813	VA - 20081205	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis, Lumbar Spine	5242	10%	DDD L4-5 and L5-S1 S/P Decompression…	5243	20%	20080927	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbar Spine, Degenerative Arthritis. According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in December 2006 after participating in hand-to-hand combat activities.  Magnetic resonance imaging (MRI) in January 2007 showed a disc fragment on the right at L4-5 with extrinsic effacement of the existing nerve root and the thecal sac.  The CI underwent back surgery (decompression of the disk fragment posterior to L5 and discectomy at L4-L5 as well as a hemilaminectomy at L5) in January 2007.  The CI continued with back and radicular pain.  Electrodiagnostic studies on 10 January 2008, were suggestive of a mild to moderate radiculopathy on the right side, with an examiner finding of mild weakness in right ankle dorsiflexion.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a MEB.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 5 May 2008, 5 months prior to separation, the CI reported continued pain with sensation complaints in the right leg and difficulty wiggling toes.  This exam indicated “See VA dictation.” Physical exam showed a normal gait and no abnormal spinal contour, swelling or muscle atrophy.  Straight leg raise testing was positive at 30 degrees on the right (for radicular symptoms).  Walking toe-to-toe was normal.  Lower extremity strength and reflexes were normal and no sensory deficits were noted.  The VA dictation documented painful motion with ROM as charted above.  Of note, the forward flexion of 90 degrees was followed by a statement of “standing flexion limited to 60 degrees.”  

The NARSUM physical exam dated 11 June 2008, 4 months prior to separation, noted no guarding, abnormal gait, abnormal spine contour or muscle atrophy.  Lower extremity strength and reflexes were normal.  Pain-limited ROMs from physical therapy (dated 13 May 2008) were cited and are summarized in the chart above.  The PT examiner noted that the CI lost balance due to pain during the lumbar flexion test.  

At the VA Compensation and Pension (C&P) examination on 27 September 2008, performed 1 month before separation, the CI reported mid to lower back pain with occasional radiation of pain bilaterally into the legs.  Weekly flares lasting hours reportedly hindered his ability to lift, bend or twist.  The CI denied any periods of physician prescribed bed rest during the previous 12 months.  Physical exam showed tenderness with muscle spasm, however gait was normal.  On examination, the straight leg raise test was positive.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), citing persistent pain with full ROM.  The VA assigned a 20% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 1 month before separation, citing muscle spasms and tenderness of the low back with a normal gait and painful, limited ROM (forward flexion greater than 30 degrees but not greater than 60 degrees).  

The Board noted the disparity between the three examinations depicted above and carefully reviewed the evidence proximate to separation and the totality of the record to determine the probative value of each examination.  The VA exam 5 months prior to separation was adjudged to have a VASRD-ratable flexion of 60 degrees, as VASRD-compliant spine ROMs are accomplished in the standing position.  The Board’s rating recommendation is based on ratable criteria at the time of separation; therefore, higher probative value was placed on evidence most proximate to that time.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 65 degrees) reported on the 27 September 2008 VA exam.  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 persistent symptoms of radiating pain after surgery with sensation complaints in the right leg and difficulty wiggling toes; however, examinations proximate to separation indicated normal strength, reflexes, sensory exam and gait.  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 specific military occupation 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 concludes 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 recommends a disability rating of 20% for the lumbar spine condition, coded 5242.   

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  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 medical separation:  

CONDITION	VASRD CODE	RATING	
Lumbar Spine, Degenerative Arthritis 	5242	20%	
RATING	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

AR20160006105, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept Its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure