RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXX	CASE: PD-2017-02972
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20080925

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “degenerative arthritis of the spine…no separately unfitting clinical signs of radiculopathy” with a disability rating of 10%.

CI CONTENTION: His back injury has steadily gotten worse and has developed depression because of the chronic pain. The CI also contended depression. 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 – 20080724	VARD - 20090218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine	5242	10%	DDD, Lumbar Spine	5242	20%	20090204	
Possible Mild Post-Traumatic Stress Disorder	Not Unfitting	PTSD	9411	30%	20090121	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Degenerative Arthritis of the Spine. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in August 2003 after a hard landing at airborne school. There was sudden onset of low back pain transiently radiating to the left leg. He suffered a second hard parachute landing on 9 September 2005 and presented to the emergency room. An MRI on 8 October 2005 showed an annular tear of L4-L5, degenerative disk disease (DDD) L2-S1.  The CI underwent physical therapy (PT) and an epidural steroid    injection

series which provided little relief. The CI deployed to Iraq in September 2006 and completed the deployment returning in November 2007 with complaints of increased back pain. The CI was referred for additional PT and to orthopedics.

During the 24 March 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the physical examination noted limited range of motion (ROM) with flexion and decreased left leg strength. At the time of the orthopedic consult 2 days later, the CI reported 95% back pain and 5% shooting pain and numbness into his leg. Physical examination showed normal spine alignment and no tenderness. There was decreased flexion secondary to pain and normal extension. Straight leg raise testing was negative bilaterally. Reflexes, strength and sensation were all normal. The CI was not interested in surgery so conservative treatment was continued.

The 20 May 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of continued back pain, rated 6/10, described as a stabbing sensation in his lower lumbar spine with left leg pain down the lateral leg to the top of his foot. Physical examination showed a non- antalgic gait, but the CI was somewhat slow in getting out of a chair onto the examination table. There was tenderness, left greater than right, of the paraspinal muscles without palpable spasm. Motor and strength were normal. Flexion was 18 degrees (normal 90) with combined ROM of 145 degrees (normal 240) and end range pain with flexion, extension and left lateral flexion. X- rays of the lumbar spine on 14 August 2008 showed normal aligned lumbar spine and no fracture. Mild disk space narrowing at L5-S1 was stable as were small Schmorl’s nodes in the endplates of L3 and L4. An MRI on 19 August 2008 showed minimal bilateral neural foraminal narrowing and lateral recess narrowing at L4-L5 and mild bilateral foraminal stenosis at L5-S1. Large Schmorl’s nodes were noted at the superior endplates of L3-L4.

At the 4 February 2009 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported pain and stiffness below the mid back with radiation of pain down both legs, left worse than right. Physical examination showed a normal gait and upright posture while standing. There was no palpable spasm and no evidence of abnormal curvature. Bilateral sacroiliac joint tenderness was present. Motor strength was normal. Thoracolumbar ROM was flexion of 60 degrees and combined ROM of 160 degrees with pain on all planes of motion. There was no further limitation in ROM after repetition. However, the examiner noted the CI forward flexed and reached to the floor to pick up his keys and sunglasses at the end of the examination.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), citing no separately unfitting clinical signs of radiculopathy and total motion functionally limited to 125 degrees by pain for which rated. The VA rated the lumbar spine condition 20%, coded 5242 based on the C&P examination, citing an overall disability picture which included consideration of functional loss due to pain, weakness, excess fatigability and/or incoordination associated with any limitation of motion.

In assigning probative value to these somewhat conflicting examinations, the panel noted that the limitation of motion recorded in the MEB NARSUM examination met the threshold for a 40% rating. However the NARSUM did not specify thoracolumbar ROM and did not provide repetitive ROM values. A review of the STR found no other reference to such severe limitation of motion. The panel felt the measurements were consistent with a flare of back pain and were inconsistent with the objective absence of spasm, non-antalgic gait, mild tenderness, and normal strength which was documented in the same examination. Panel members agreed that the VA examination, performed about the same time relative to separation, was more detailed, compliant with VASRD rating guidelines, consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology. Therefore the panel placed greater probative value on the VA 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 reported on the VA examination. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. There was no associated radiculopathy for separate peripheral nerve rating. 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).” There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty. The panel therefore concluded that an additional disability rating was not justified on this basis. 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 back condition, coded 5242.

BOARD FINDINGS: In the matter of the degenerative arthritis of the spine condition, the panel recommends a disability rating of 20%, coded 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	
Degenerative Arthritis of the Spine	5242	20%	

Exhibit A. DD Form 294, dated 20170328, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190008742, XXXXXXXXXXXXXXXXXX 

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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.