RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00410
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080627

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Infantryman, medically separated for “lumbar degenerative disc disease (DDD) without motor neurologic deficits” with a disability rating of 10%.  

CI CONTENTION:  The condition has worsened.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20080328	VARD - 20081104	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD without Motor Neurologic Deficits	5299-5242	10%	DDD, Lumbar Spine	5010-5237	10%	20080902	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Lumbar DDD without Motor Neurologic Deficits.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in November 2006 after falling in a ditch.  A lumbar spine MRI performed in 2007 showed multilevel DDD with central canal and neuroforaminal (area through which the spinal nerves exit) narrowing at L2-L5.  Physical therapy measured thoracolumbar (TL) range of motion (ROM) for the MEB on 21 November 2007, 7 months prior to separation, and after three repetitions, flexion was 30 degrees (normal 90) and combined ROM was 130 degrees (normal 240).  Tenderness was present without muscle spasm.  The CI’s gait was normal and there were normal spinal contours.  

The 14 February 2008 MEB NARSUM examination, 4 months prior to separation, noted complaint of chronic lower back pain.  Physical examination showed a normal gait.  There was tenderness throughout the lumbosacral region.  No spasms were noted and straight leg raise testing (SLR) to elicit radicular symptoms was negative bilaterally.  Lower extremity strength and sensation was normal bilaterally.  Physical therapy measured ROM again for the MEB on 10 March 2008, 3 months prior to separation, TL ROM measurements after three repetitions, showed flexion of 40 degrees and combined ROM of 155 degrees after repetitive motion, with painful motion noted.  There was no associated fatigue, weakness, lack of endurance, instability or incoordination.  The therapist noted gait was normal.  The CI reported daily pain flare-ups.  The NARSUM was updated on 19 March 2008 and referenced the second PT MEB ROM.  

At the 2 September 2008 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported daily sharp pain.  Physical examination showed a normal gait with normal spinal curvatures.  Thoracolumbar ROM was flexion of 90 degrees (normal) and combined ROM of 240 degrees (normal).  There was evidence of painful motion without spasm, weakness or tenderness.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing tenderness without spasm and forward flexion to 99 degrees combined ROM was greater than 235 degrees.  The VA also rated the low back condition 10%, dual coded 5010-5237 (arthritis, due to trauma, substantiated by X-ray findings-lumbosacral or cervical strain), based on the C&P examination.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as documented at the MEB PT examination 3 months prior to separation.  The VA examination 2 months after separation documented improved TL ROM, however, members resolved reasonable doubt in favor of the CI and placed greater weight on the pre-separation examination for its rating recommendation.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the lumbar DDD without motor neurologic deficits condition, coded 5299-5242.  

BOARD FINDINGS:  In the matter of the lumbar degenerative disc disease without motor neurologic deficits condition, the panel recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a. There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbar Degenerative Disc Disease without Motor Neurologic Deficits	5299-5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170211, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190008805, 

Dear XXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.