RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00649
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071016

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Motor Transport Operator, medically separated for “intervertebral disk syndrome,” with a disability rating of 0%.  

CI CONTENTION:  The CI requests all conditions be considered.  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 - 20070925	VARD - 20080306	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disk Syndrome	5243	0%	Lumbosacral Spine S/P Back Surgery with Discectomy and Laminectomy with Degenerative Disc and Joint Disease	5242-5243	10%	20080123	
			Right Lower Extremity Sciatica	8520	0%	20080123	
Dyslipidemia	Not Unfitting	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  
Intervertebral Disk Syndrome (IVDS).  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back condition began in May 2006, following a tactical vehicle accident were he was a passenger in the cargo area.  Initial radiographic studies showed no evidence of a compression fracture or any acute findings other than very minor lumbar scoliosis (lateral curvature).  Following continued symptoms, later diagnostic studies (MRI of the lumbar spine) in September 2006 revealed a prominent L5-S 1 posterior disk protrusion central and to the right.  An electrodiagnostic study in November 2006 was normal.  

The CI underwent his first back surgery in December 2006, 11 months prior to separation, for laminectomy and diskectomy at L5-S1.  The CI continued to report pain despite injection therapy and diagnostic imaging in April 2007 showed residual recurrent herniated nucleus pulposus at L5-S1.  The CI underwent his second surgical procedure in June 2007, 4 months prior to separation, for a diskectomy at L5-S1.  

Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic right posterior thigh pain and lower back pain (status post two lumbar surgeries for herniated discs)” for PEB adjudication.  

The MEB examination (recorded on DD Forms 2807 and 2808) dated July 2007, 3 months prior to separation noted the CI’s previous low back surgeries and continuing back pain.  Examination documented decreased flexion and extension due to back pain and swelling and tenderness of the surgical scar.  

The MEB NARSUM examination on 27 August 2007 (2 months prior to separation) noted complaints of "stabbing" pain "70% of the time" while he was awake; with “60%” of his total pain involving his right posterior thigh and "40%" his lower back."  He complained of intermittent tingling in his right posterior thigh, which occurred "maybe once a week."  He was unable to run; had limited walking, lifting and carrying (max 30 pounds), and prolonged standing (max 45 minutes).  Physical examination showed painful forward flexion to 85 degrees (normal 90) and combined ROM of 230 degrees (normal 240).  The examiner indicated motion was accompanied by pain and “there were no mechanical blocks.”  There was normal gait and posture with no back tenderness or spasm.  There was good heel and toe walk and normal motor, reflex, and sensory testing.  Provocative tests for radicular symptoms were negative.  

At the VA Compensation and Pension (C&P) examination performed in January 2008, 3 months after separation, the CI reported pain across the lower back that radiated as “sharp and shooting” down the right anterior thigh and knee.  The CI reported a 3/10 pain level on a daily basis.  Physical examination noted a normal gait.  Range of motion (ROM) testing recorded pain at end of ROM with forward flexion of 80 degrees (normal 90) and combined motion of 215 degrees (normal 240).  There was no further decrease in motion, fatigue or impaired endurance after three repetitions.  Motor, sensory and reflex examinations were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under the 5243 code (IVDS), citing “non-compensable motion loss without tenderness or spasm,” referencing AR 635-40, para B-15.  This was also adjudged as likely application of AR 635-40, para B-29 (rescinded) indicating that “joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.”  The VA assigned a 10% rating using an analogous 5243 code (IVDS) based on the VA C&P examination 3 months after separation, citing limitation of forward flexion.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on all examinations.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had IVDS with complaints of radiating pain.  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 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 recommends a disability rating of 10% for the low back condition, coded 5243.  

Contended PEB Conditions:  Dyslipidemia.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the intervertebral disk syndrome condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended dyslipidemia 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Intervertebral Disk Syndrome	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150603, 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 AR20160014889 (PD201500649)

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 10% 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