RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02570
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20070426

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Cannon Crewmember, medically separated for “lumbar degenerative disc disease” 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 - 20070322	VARD - 20070731	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Disc Disease	5299-5242	10%	Degenerative Disc Disease, Lumber Spine, with Right Flank Pain and Numbness	5242	20%	20070618	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Lumbar Degenerative Disc Disease.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in April 2006 after falling over a concrete ledge.  He developed pain radiating down his right buttock and leg.  A November 2006 nerve conduction velocity study showed some right tibial and peroneal nerve problems.  An MRI showed a L4-L5 and L5-S1 disk bulges and stenosis (spinal canal narrowing).

At the 2 February 2007 MEB physical therapy appointment, 3 months prior to separation, the CI reported low back pain.  Physical examination showed an abnormal gait, spinal tenderness and guarding.  There was no spinal muscle spasm or abnormal contour.  Range of motion (ROM) was flexion to 15 degrees (normal 90) and a combined ROM of 135 degrees (normal 240) with painful motion.

During the 9 February 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain.  Physical examination showed an abnormal gait and heel and toe walking.  There was no spinal tenderness or spasm, but straight leg raising testing for radiculopathy was positive.  The right leg and ankle showed slight weakness but coordination and balance were normal.  Lower extremity reflexes and peripheral nerves were normal.  ROM was cited in the aforementioned MEB physical therapy examination.

At the 20 February 2007 VA Compensation and Pension (C&P) evaluation, performed 2 months before separation, the CI reported back pain and numbness.  Physical examination showed a normal gait and motor strength was 5/5.  ROM was flexion to 15 degrees and combined ROM was 135 degrees with pain limited motion; no change from the aforementioned MEB physical therapy examination.  There was no additional limitations from pain, fatigue, weakness or lack of endurance following repetitive use.

At the 18 June 2007 C&P evaluation, performed 2 months after separation, the CI reported back pain with bending and pain radiating into the right leg and foot with occasional numbness and paresthesia, associated with weight bearing.  Physical examination revealed no external abnormality (normal gait and posture, no tenderness or spasm).  There was no significant lower extremity neurological or sensory findings.  ROM was flexion to 60 degrees and a combined ROM was 185 degrees; no change with repetitive testing.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5242 (degenerative arthritis of the spine), citing ROM limited by pain and localized tenderness.  The VA rated the back condition 20%, also coded 5242, based on the C&P examination 2 months after separation, citing limitation of flexion.  

The panel agreed that a 40% rating, but no higher, was justified for limitation of flexion of the thoracolumbar spine 30 degrees or less supported by the preponderance of STR evidence, and MEB physical therapy and C&P examinations proximate to separation.  The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’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 panel 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 panel recommends a disability rating of 40% for the lumbar degenerative disc disease condition, coded 5242.

BOARD FINDINGS:  In the matter of the lumbar degenerative disc disease condition, the panel majority recommends a disability rating of 40%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:
CONDITION	VASRD CODE	PERMANENT RATING	
Lumbar Degenerative Disc Disease	5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment]

AR20170013327, XXXXXXXXXXXXXXXXXX.

XXXXXXXXXXXXXXXXXX
Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased to 40%.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed).  I regret to inform you that I reject the Board’s recommendation and your application to the DoD PDBR is denied.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

	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