RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00101
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 0-3, Military Intelligence Officer, medically separated for a back condition with a disability rating of 10%. 

CI CONTENTION:  The applicant requests consideration of all conditions in his application.  His 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:  

IPEB - Dated 20031107	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of Lumbar Spine	5242	10%	DDD L2S1	5243	20%	20031125	
			Radiculopathy RLE	8599-8520	10%	20031125	
			Radiculopathy LLE	8599-8520	10%	20031125	
Other Conditions x 0 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20040406 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Degenerative Arthritis of Lumbar Spine Condition.  The CI was first noted to have mechanical low back pain (LBP) in physical therapy (PT) on 22 February 1995.  He was given a home exercise program and did well for several years.  An X-ray on 10 December 2001, done due to pain radiating to his right foot, showed degenerative disc disease (DDD).  He was issued duty restrictions and an MRI requested.  On 7 February 2002, it showed multilevel DDD without nerve root impingement.  He was treated with lifestyle changes, PT, medications, steroid injections, and duty restrictions, but did not have resolution of his pain.  An evaluation in neurosurgery on 22 October 2002 noted normal sensation, strength, reflexes and gait.  Flexion was reduced to 8 inches from the floor (over 60 degrees, but less than 90).  A repeat MRI on 17 April 2003 showed probable nerve root impingement at L5, left greater than right.  At the MEB examination on 8 April 2003, 9 months before separation, the CI reported pain radiating down both legs to his toes with numbness of his feet and toes.  The MEB physical examination noted decreased sensation on the left and right (illegible).  In the narrative summary (NARSUM) dated 19 June 2003, 6 months before separation, the examiner noted the history of LBP since 1995 without a specific history of trauma.  He was able to accomplish his job as it involved mostly sitting, but could not meet full duty requirements.  He was not thought to be a surgical candidate.  Some improvement had been noted in PT.  No examination was accomplished; the MEB and neurosurgery examinations (above) were cited.  A neurology evaluation on 24 October 2003, showed a normal neurological evaluation including toe and heel walk.  His history was not thought to be suggestive of radiculopathy.  Electrodiagnostic studies on 30 October 2003 were consistent with a bilateral radiculopathy at L5S1 on the right and S1 on the left with signs of re-innervation (healing).  At the VA Compensation and Pension (C&P) spine examination performed on 25 November 2003, 2 months before separation, the CI reported that he could walk a mile.  He denied incapacitation.  On examination, he had an antalgic gait (abnormal due to pain) favoring the left and guarding the right extremity.  However, there was no atrophy, and strength, sensation, and reflexes were normal.  Tenderness to palpation was present, but spasm was not recorded.  The neurology examination was noted to be normal at the general examination done the same day.  The goniometric range-of-motion (ROM) evaluations 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)	MEB ~15 Mo. Pre-Sep	PT ~3 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
Flexion (90 Normal)	8 inches from floor	90	90	
Combined (240)	Over 210	---	240	
Comment	Nml neuro; painful motion not recorded	Inclinometer used; ROM was functional; pain at end range	Painful motion; guarding; abnormal gait	
§4.71a Rating	10%	0%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5242 (degenerative arthritis of the spine).  The VA rated the back at 20%, coded 5243 (intervertebral disc syndrome) noting that the CI had an abnormal gait due to guarding of the right lower extremity (RLE) and favoring the left lower extremity (LLE).  The VA also adjudicated a 10% rating each for the RLE and LLE for a radiculopathy, coded 8599-8520 (analogous to mild paralysis of the sciatic nerve) based on the electrodiagnostic study.  The Board first considered the back condition.  Although the examinations prior to the VA C&P supported no more than the 10% rating adjudicated by the PEB, the VA examination was the most proximate to separation and compared to the PEB examination, used a goniometer and was more complete.  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, retaining the 5242 code.  

The Board then considered if an unfitting radiculopathy was present at separation.  While electrodiagnostic studies showed the presence of a radiculopathy bilaterally, the examiner also noted evidence of healing.  The neurological examinations proximate to separation were both normal including one by a neurologist.  The evidence does not support the addition of a radiculopathy (left or right) as an additional unfitting condition at separation.  The Board concluded therefore that a radiculopathy could not be recommended for a separate disability rating.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended RLE and LLE radiculopathy conditions, the Board unanimously agrees that it cannot recommend either for an additional disability rating.  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.  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Arthritis of Lumbar Spine	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140710, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX AR20160014214 (PD201500101)

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