RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03733
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20090510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Radio and Communications Security Equipment Repairman, medically separated for “degenerative disc syndrome” with a disability rating of 20%.  

CI CONTENTION:  “Rating was based off of unknown back issue.  Diagnoses of a herniated disk with nerve damage was found after board was finished.”  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 - 20090319	VARD - 20090604	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Syndrome	5242	20%	Degenerative Disc Disease, Lumbosacral Spine with Radiculopathy	5242	20%	20090217	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Degenerative Disc Syndrome.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with lumbar micro discectomy in September 2008 for a herniated disc at L4-5.  He started to experience a recurrence of his low back pain (LBP) a week later, and a post-operative MRI study showed a right disc protrusion at L4-5.  Repeat surgery was not considered an option, and conservative therapy, to include restricted duty, analgesics, anti-inflammatory medications, electrical nerve stimulation, local and epidural steroid injections, thermal applications, low impact exercises, and traction devices, did not provide enduring pain relief.  The CI was referred for MEB.  
During the 1 December 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported LBP on a scale of 8/10 that was exacerbated by bending, lifting, and carrying.  He claimed the pain radiated down his right leg.  Physical examination showed tenderness at L1-L4 and the right sacrospinal area.  The examiner reported reduced range of motion (ROM) although specific measurements were not provided.  Lower extremity strength, sensation, and reflexes were normal.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  

At the 17 February 2009 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported LBP at a level of 8/10, with flare-ups that lasted for 30 minutes to 2 hours (frequency not mentioned).  He was able to walk up to 2 miles and lift up to 20 pounds.  Physical examination showed a normal gait and posture with no tenderness or spasm.  Thoracolumbar spine ROM was flexion of 50 degrees (normal 90), 15 degrees extension (30 normal), 20 degrees left lateral flexion (30 normal), 20 degrees right lateral flexion (30 normal), 30 degrees left rotation (30 normal), 30 degrees right rotation (30 normal), and a combined ROM of  165 degrees (240 normal).  Straight leg raise test was negative for radiating symptoms, and lower extremity strength, sensation, and reflexes were again normal.  

The 23 February 2009 MEB NARSUM examination, 3 months prior to separation, noted the CI was unable to undertake high impact exercise including running, jumping, climbing, mounting and dismounting military vehicles, and other listed activities.  Physical examination showed a normal gait and spinal posture with tenderness to percussion over the lumbar spine area but no muscle spasm.  Lower extremity reflexes and sensation were normal.  He hesitated to stand, sit, and walk.  He used the arms of his chair to help him stand, used his arms and elbows to assume the supine position from the seated position, and used a modified log roll maneuver to resume the seated position from the supine position.  The 26 February 2009 physical therapy examination for thoracolumbar active ROM measurements, 3 months prior to separation, noted no specific complaints.  Physical examination showed flexion of 45 degrees, 10 degrees extension, 10 degrees left lateral flexion, 15 degrees right lateral flexion, 20 degrees left rotation, 20 degrees right rotation, and a combined ROM of 120 degrees after repetition, with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), citing that rating was in accordance with the VASRD General Rating Formula for Diseases and Injuries of the Spine with consideration given to 4.10, 4.40, and 4.59.  The VA also rated the back condition 20%, coded 5242, citing VASRD rating criteria and noting flexion was 0-50 degrees.  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) and/or combined ROM (not greater than 120 degrees) as reported on the NARSUM and VA C&P examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  

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.  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 back condition.  
BOARD FINDINGS:  In the matter of the back 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 20170416, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006242, 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