RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02053
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E4, Military Police, medically separated for “lumbar degenerative disc disease [DDD] with significant neurologic deficit” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.” The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20070315	VARD – 20060811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD with Significant Neurologic Deficit	5242	10%	L5-S1 Bulging Disc with Mild Central Spinal Canal Stenosis	5299-5243	NSC	20060725	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Lumbar DDD with Significant Neurologic Deficit).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in July 2002 without specific injury.  Radiographic studies showed DDD at L5-S1 with bulging causing mild central spinal canal stenosis.  

At the  25 July 2006 VA Compensation and Pension (C&P) evaluation, performed 8 months before separation, the CI reported lower back pain with radiation down both legs to the heels.  Pain intensity was reported at 2-3/10.  Back pain flares were reported once or twice per week rated 10/10.  Flares were precipitated by long walking, mopping or sweeping, lifting greater than 30 pounds or bending.  Physical examination showed a normal gait with no abnormal spinal contour, spasm, or tenderness.  Range of motion (ROM) testing showed 75 degrees of flexion (normal 90) and total combined thoracolumbar motion of 225 degrees (normal 240).  There was no painful motion.  Although provocative maneuvers to elicit radicular pain were positive, the CI had normal motor strength and reflexes.  However, the sensory evaluation did note diminished pinprick of the legs.  Electrodiagnostic studies on 21 August 2006 showed no evidence of radiculopathy.  

The 15 December 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain exacerbated by prolonged standing, sitting and walking.  No bladder or bowel dysfunction was reported.  Physical examination showed normal gait, motor strength, reflexes and sensation.  Provocative maneuvers to elicit radicular pain were negative.  There was slight tenderness to palpation of the paravertebral lumbar area, but the examiner did not comment on spasm, guarding or the presence of abnormal spinal contour.  ROM testing showed flexion of 50 degrees and total combined thoracolumbar ROM of 160 degrees.

The 18 January 2007 MEB ROM study, 3 months before separation, showed flexion of 90 degrees after repetition and total combined thoracolumbar ROM of 185 degrees.  There were no complaints of pain during ROM testing.  The examiner noted that the CI had a normal gait without evidence of localized tenderness, muscle spasm, or guarding. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), citing localized tenderness.  The VA did not rate the back condition, but instead indicated that it was “not service connected” and coded it 5299-5243 (analogous to intervertebral disc syndrome), based on the C&P examination 9 months after separation, citing no permanent residual or chronic disability subject to service connection was shown by the STR or evidence following service.  

The panel first agreed that the MEB ROM study dated 18 January 2007 had greater probative value than the MEB NARSUM examination because it included an assessment of functional loss after repetition during ROM testing and was more proximate to separation.  The panel agreed that a 10% rating, but no higher, was justified for combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the  MEB ROM study proximate to 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.  The panel concluded there was no evidence to support a rating higher than the 10% rating adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the Board’s scope of review for consideration.  The panel, 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 20150721, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010034, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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,