RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00302
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Combat Engineer, medically separated for “intervertebral disc syndrome” rated 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 - 20080426	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS	5243	10%	NO VA Examination in Evidence	
Lumbar Radiculopathy	Not Unfitting 		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome (IVDS).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s intervertebral disc syndrome (IVDS) began in January 2007 when he injured his back carrying another soldier during first aid training.  Radiographic studies showed a small protrusion of a lower back vertebral disc.  

There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.

The 22 August 2007 MEB ranges of motion (ROM) measurements, 5 months prior to separation, documented flexion at 90 degrees (normal 90) and combined ROM at 220 degrees (normal 240) after 3 repetitions.  Pain was noted at the extremes of all planes of motion.  

The MEB NARSUM examination 5 days later (27 August 2007) noted complaints of low back pain rated 3/10 in severity, exacerbated by physical activity and prolonged standing or sitting, which prevented the CI from running, doing sit-ups, and lifting over 45 pounds.  The CI denied bowel or bladder symptoms and indicated that pain that had radiated down his left leg had gone away.  Physical examination showed “full active ROM,” normal lower extremities with pain noted during flexion and extension.  The examiner noted tenderness of the lower back, but neurologic examination was normal (with lower extremity strength and gait recorded as normal).  Provocative testing for signs of radiculopathy were negative bilaterally.  

There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing the presence of tenderness.  There was no VA rating in evidence 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) measured at the MEB ROM examination (22 August) and/or tenderness and painful motion reported on the NARSUM examination.  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.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  Although the CI had IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  

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 IVDS condition.  

Contended PEB Condition:  Lumbar Radiculopathy.  The panel noted that the PEB explicitly adjudicated radiculopathy as not unfitting and the CI contended this condition.  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  The panel’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.  Lumbar radiculopathy was judged to fail retention standards in the NARSUM and by the MEB.  The CI had complained of radiating pain, predominantly in the left leg, but he indicated that this pain had resolved by the time of the NARSUM examination.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The NARSUM examination reported normal strength, reflexes and gait.  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  

After due deliberation, the panel 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 disc syndrome and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended lumbar radiculopathy, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160515, w/atchs
Exhibit B.  Service Treatment Record

	

AR20170015258 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,					      
						      					
Enclosure