RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00362
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “intervertebral disc syndrome,” with a disability rating of 20%.  

CI CONTENTION:  “VA rating decision shows a higher rating.”  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 - 20081222	VARD - 20090330	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome	5243	20%	Mild Lumbar Endplate Degeneration with Small Lumbar Disc Herniation	5243	20%	20090221	
Hypertension	Not Unfitting	Hypertension	7101	0%		
Depression		PTSD	9411	30%		
Intermittent Left Shoulder Pain		Residuals, Left Clavicle Fracture	5299-5203	0%		
GERD		GERD	7399-7346	0%		
Hiatal Hernia		No VA Placement	
Obesity	Not a Physical Disability	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome (IVDS).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s IVDS condition began in September 2006 after lifting a heavy object.  He later developed chronic pain radiating down both legs associated with tingling and numbness into the toes.  MRI in November 2006 showed degenerative disk disease at L4-5, and L5-S1 with disk herniation at L4-L5 involving the nerve root.  He had normal electromyelogram test (EMG) and nerve conduction study.  The CI was evaluated by orthopedic and neurology and was not a surgical candidate.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  

The MEB NARSUM examination on 2 September 2008, 6 months prior to separation, noted complaint of back pain at rest of 5/10, which increases to 9/10 with prolonged standing, walking, ascending and descending stairs, and bending.  The CI was unable to run, ruck, march, carry a fighting load, construct a fighting position, do push-ups and could not complete the APFT.  The physical examination recorded normal sensory and motor exams, normal gait, and the ability to heel and toe walk without difficulty.  

Physical therapy (PT) range of motion (ROM) testing for the MEB was conducted on 9 December 2008, 3 months prior to separation.  ROM showed forward flexion to 45 degrees (NL=90), and extension to 25 degrees (30).  There was pain on motion, and spasm was not observed.  

At the 2 February 2009 VA Compensation and Pension (C&P) evaluation, performed 2 weeks prior to separation, the CI reported persistent back pain and stiffness, and absence of radicular symptoms.  The physical examination showed ROM flexion at 60 degrees with pain, and no additional loss of ROM with repetition of motion.  Evidence of radiculopathy was absent, and spasm was not recorded.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5243 (degenerative arthritis of the spine), citing 45 degrees of flexion.  The VA also rated the back condition 20% coded 5243 based on the VA C&P examination, citing “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  

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 and/or muscle spasm severe enough to result in an abnormal spinal contour reported on the examinations proximate to separation.  The Board considered whether a higher rating (§4.7) was achieved based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to justify a higher rating under the VASRD formula for IVDS.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength and gait, and normal EMG studies.  

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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an 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:  Hypertension, Depression, Intermittent Left Shoulder Pain, GERD, Hiatal Hernia, and Obesity.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The Board reviewed the STRs and noted the CI’s report of minimal treatment for anxiety in 2008.  Treatment records for any MH condition were silent with the exception of the medication profile that demonstrated prescribed antidepressant medication in June 2008 appearing not to have been filled.  The record also showed that the CI had two surgeries on his left shoulder in 2004.  The NARSUM examination of the shoulder showed normal ROM in all directions with the exception of decreased shoulder abduction.  Instability or weakness was absent.  According to DoDI 1332.38, E5.1.3.10, obesity is a condition not constituting a physical disability and therefore is not ratable or compensable. Additionally, the Board noted that none of the contended conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication.  In the matter of the contended hypertension, depression, intermittent left shoulder pain, GERD, hiatal hernia, and obesity conditions, the Board 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 20140811, 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

19 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160018699 (PD201500362)

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