RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02028
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080327

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Human Resource Specialist, medically separated for “lumbar degenerative disc disease,” with a disability rating of 10%.

CI CONTENTION:  “The Army rated me 0% when I separated on a medical discharge on March 27, 2008.  Since that time the conditions which were service connected and has increased, VA rated me at 30% upon my initial claim.  Conditions of my migraines worsen and my rating was bumped up to 50%.  Frequency of the condition continued, and my last rating by VA increased me to my current 70% disability 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 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 - 20080410	VARD - 20090109	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Disc Disease…	5299-5242	10%	Lumbar Strain	5237	10%	20080827	
Bilateral Knee Pain	Not Unfitting	Left Knee Strain	5257-5024	10%	20080827	
		Right Knee Strain	5257-5024	10%	20080827	
Migraine Headaches	Not Unfitting	Headache, Unspecified	8100	10%	20080827	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease (DDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in February 2006 after twisting his back while playing basketball.  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 MEB.  The MEB forwarded “chronic low back pain (slight/intermittent)” for PEB adjudication.  At the time of the orthopedic clinic appointment on 10 May 2007, the CI reported continued low back pain (LBP) without numbness, weakness or radicular pain.  On examination the CI walked with a normal gait, had normal spinal curvature, no para spinal tenderness and “normal” range of motion (ROM) with pain.  At a primary care clinic appointment on 1 November 2007, the CI experienced worsening back pain without numbness, weakness or radicular pain.  The physical examiner noted the presence of muscle spasm and painful motion without providing specific ROM information.  The MEB NARSUM examination on 13 September 2007 (6 months prior to separation) noted objective findings of no focal tenderness or muscle spasm and a normal gait.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were absent.  The CI forward flexed, using 3 repetitions, to 60 (70/65/60) degrees (normal 90), with a combined ROM of 195 degrees (normal 240) with pain limited motion.  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  At the 27 August 2008 VA Compensation and Pension (C&P) evaluation, performed 5 months after separation, the CI reported continued LBP with no weakness, numbness for bladder or bowel complaints.  The pain was localized that caused not incapacitation or functional impairment.  Physical examination showed a normal posture and gait and no painful motion, muscle spasm or tenderness.  Radicular signs were absent on the right and left lower extremities.  The CI was measured as forward flexing to 70 degrees with a combined ROM of 220 degrees.  Radiographic studies, performed in August 2008, showed disc space narrowing at L5-S1.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar DDD condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing forward flexion to 70 degrees.  The VA also rated the lumbar strain condition 10% coded 5237 (lumbosacral strain), based on the VA C&P examination 5 months after separation, citing forward flexion limited to 70 degrees.  The Board majority 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 combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the VA C&P examination which was closer to the CI’s date of separation.  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 intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar DDD condition.  

Contended PEB Conditions:  Bilateral Knee Pain and Migraine Headaches.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The bilateral knee pain was profiled, but the migraine headaches were not profiled and neither condition was 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 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 lumbar DDD condition and IAW VASRD §4.71a, the Board by a majority vote recommends no change in the PEB adjudication.  In the matter of the contended bilateral knee pain and migraine headaches conditions, the Board unanimously 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 20150723, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005331, XXXXXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure