RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01809
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Metal Worker, medically separated for “intervertebral disc syndrome” with a disability rating of 10%.  

CI CONTENTION:  Review requested of radiculopathy in both legs associated with herniated nucleus in lumbar spine and other issues (headaches and insomnia) overlooked by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20081021	VARD – 20090915	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome	5243	10%	Herniated Nucleus Pulposus in Lumbar Spine	5243	10%	20090612	
Headaches	Not Unfitting	Mild Traumatic Brain Injury, Post-Concussive Syndrome, with Secondary Headaches	8045	10%	20090831	
Insomnia	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in mid-2004 during basic training without a specific injury.  His pain increased during a deployment and then in January 2008 when he was involved in a motor vehicle accident.  An orthopedics evaluation recommended delaying surgery.  

During the 8 February 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 12 months prior to separation, the CI reported chronic low back pain (LBP).  Physical examination revealed paraspinal tenderness and muscle spasms, but normal gait and bilateral lower extremity strength.  Thoracolumbar range of motion (ROM) was limited and showed decreased flexion, extension, lateral flexion and rotation, with painful motion (no measurements provided).

Thoracolumbar ROM tests performed by physical therapy on 29 April 2008 showed flexion of 90 degrees (normal) and combined ROM of 230 degrees (normal 240), with painful motion, but no changes after repetition.  At an orthopedic visit on 23 July 2008, the CI reported low back pain, and on examination, his lumbosacral spine was normal appearing as was his gait.  There was right paraspinal tenderness, but no muscle spasms, and lumbosacral spine pain was elicited by flexion.  

The 11 June 2008 MEB NARSUM examination, 8 months before separation, recorded complaints of a stabbing LBP that ranged from 2-3/10 to 6-10/10 with flare-ups. Physical examination showed a normal gait and spinal contours, L5-S1 paraspinal muscle tenderness, and painful, but normal, ROM in all planes with flexion of 90 degrees and combined ROM of 240 degrees.

At the 12 June 2009 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported LBP, and the provider noted muscle spasm and tenderness that was not severe enough to cause an abnormal gait or spinal contour.  Thoracolumbar ROM, after repetition, showed flexion of 90 degrees and combined ROM of 210 degrees, with painful motion. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness.  The VA also rated the low back condition 10%, coded 5243, based on the C&P examination, citing muscle spasms and tenderness, with no atrophy, guarding, or weakness; and objective evidence of painful active ROM.  Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion and tenderness.  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 with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Contended PEB Conditions:  Headaches and Insomnia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled, 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 panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended headaches and insomnia conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

AR20180011478, 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.