RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02035
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091003

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “lumbar spinal fusion” and “cervical spine strain,” rated 10% each, with a combined  disability rating of 20%.  

CI CONTENTION:  No specific contention was made.  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 - 20090818	VARD - 20091120	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spinal Fusion	5241	10%	Discogenic Disease with Status Post Fusion	5243	40%	20091019	
Cervical Spine Strain	5237	10%	Cervical Strain	5237	10%	20091019	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Lumbar Spinal Fusion.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent an L5-S1 spinal fusion in March 2008 with placement of four screws and two metal plates into the lumbar spine.  At the time of the primary care appointment on 16 September 2008, 13 months prior to separation, the CI complained of low back pain.  Physical examination showed lumbar spine swelling, midline tenderness, no muscle spasm and a normal gait.  Range of motion (ROM) measurements were not provided but the examiner noted that pain was elicited by flexion, and rotation in both directions.  

The 17 July 2009 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of low back pain with intermittent leg numbness.  Physical examination showed tenderness of the lumbar spine, but no swelling or guarding.  Thoracolumbar ROM measurements using a goniometer recorded active flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal) after repetitive motion.  

At the 19 October 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported having moderate constant dull pain in the lower back with occasional shooting pain.  Physical examination showed spasm, guarding and tenderness, but a normal gait and no scoliosis or reverse lordosis.  The ROM measurements were not performed due to pain.  The examiner noted 5 incapacitating episodes during the previous 12-month period, with each lasting 1 to 2 days in duration.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar condition 10%, coded 5241 (spinal fusion), citing localized muscle tenderness and satisfactory evidence of pain on motion.  The VA rated the lumbar condition 40%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing thoracolumbar forward flexion to 30 degrees.  Members noted that 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 guarding.  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 of 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 lumbar condition.

Cervical Spine Strain.  According to the STR and MEB NARSUM, the CI’s cervical condition began in February 2007 after doing sit-ups during physical training and was subsequently aggravated after falling in May 2007.  

The MEB NARSUM examination noted complaints of constant neck pain rated at 6/10, with and increase to 10/10 during exacerbations on by physical activity.  Physical examination showed no spasm, but cervical tenderness and muscle guarding was present.  The cervical spine ROM measurements, using a goniometer, showed flexion of 45 degrees (normal) and combined ROM of 240 degrees (normal 340) after repetition, all associated with painful motion.  

At the 19 October 2009 VA C&P examination, 1 month after separation, the CI reported progressively worse neck pain, and the examiner documented spasm and tenderness.  After repetition, flexion was to 30 degrees and combined ROM was 265 degrees, with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical condition 10%, coded 5237 (cervical strain), citing normal curvature with some localized muscle tenderness and full, painful motion.  The VA also rated the cervical condition 10%, coded 5237, based on the C&P examination, citing forward flexion greater than 30 degrees but not greater than 40 degrees.  Members agreed there was insufficient limitation of motion to support a minimum rating, the presence of painful motion and tenderness justified a 10% rating.  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.  After due deliberation, considering all of 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 cervical condition.  

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the cervical condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 20170308, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs

AR20180016333, 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