RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01902
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated for “spinal fusion” with a disability rating of 20%.  

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 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 - 20090212	VARD - 20100218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion	5241	20%	S/P Laminectomy, L5-S1	5237	20%	20090924	
Anxiety Disorder	Not Unfitting	PTSD	9411	Deferred 	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Spinal Fusion.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery in March 2007 with lumbosacral spinal decompression.  At the 23 October 2008 MEB NARSUM examination, 12 months prior to separation, the CI’s chief complaint was “failed back surgery.”  His physical examination (PE) performed on 2 July 2008 showed lumbosacral tenderness.  Clinical tests for radiculopathy were negative and peripheral reflexes were normal.  The 13 May 2009 warrior transition clinic appointment on 13 May 2009, 4 months prior to separation, noted complaints of low back and bilateral leg pain.  His PE revealed normal, but painful thoracolumbar range of motion (ROM).  Lumbar muscle spasms were present, but the CI’s gait, posture and motor function were normal.  
During the 24 September 2009 VA Compensation and Pension (C&P) evaluation, 8 days after separation, the CI complained of persistent low back pain.  His PE revealed a normal posture and gait.  Spinal ROM measurements showed flexion of 50 degrees (normal 90) and combined ROM of 190 degrees (normal 240).  There was no radiation of pain on movement, weakness, muscle spasm, tenderness, guarding, atrophy or change in muscle tone.  Tests for peripheral radiculopathy were negative.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 20%, coded 5241 (spinal fusion), citing limitation of motion with painful flares.  The VA also rated the back condition at 20%, coded 5237 (lumbosacral strain), citing the criteria for rating diseases and injuries of the spine.

Panel members agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and combined ROM (not greater than 120 degrees), as reported on the VA examination proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel concluded there was no evidence to support a rating higher than that adjudicated by the PEB.

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  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.  

Contended PEB Condition:  Anxiety Disorder.  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, implicated in the commander’s statement nor judged to fail retention standards.  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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder and IAW VASRD §4.130, the panel unanimously recommends no change in the PEB determination 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. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170309, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180005879, 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