RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX  	CASE:  PD-2017-04175
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090120

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

CI CONTENTION:  Review of all conditions requested.  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 - 20081208	VARD - 20090506	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS	5243	10%	L4-L5 Disc Injury, L5-S1 Disc Bulge, S/P Surgery, with Residual Scar, Occasional Spasms, Pain	5243	10%	20090420	
Positive PPD	Not Unfitting	No VA Placement	
Hypercholesterolemia	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

IVDS.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in August 2007 when he was lifting 100-pound artillery rounds on a training exercise.  X-rays revealed no significant abnormality.  MRI of the lumbosacral spine in October 2007, revealed an L4/5 annular tear with disc herniation and significant spinal stenosis.  There was also multilevel spondylosis and mild spinal canal narrowing noted.  Surgery was recommended and performed in July 2008.  The operation was a right L4/5 hemilaminotomy and discectomy for decompression of existing right L5 nerve root.  The CI’s postoperative course was generally successful.  At the time of the physical therapy appointment on 1 October 2008, 4 months prior to separation, the examiner recorded thoracolumbar range of motion (ROM) measurements of flexion 75 degrees (normal 90) and combined ROM of 165 degrees (normal 240) after repetition.  There was lumbosacral spine tenderness, spasms, and/or guarding, but the gait and contour were normal.  

The 3 November 2008 MEB NARSUM examination, 3 months prior to separation, noted the CI continued to have some low back pain with significant limitations in terms of running, lifting and impact activities.  Physical examination showed thoracolumbar ROM flexion of 70 degrees and combined ROM of 180 degrees.  There was no increase in pain with repetition.  The remainder of the examination was unremarkable.  

At the 20 April 2009 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported it hurt when he did stretching exercises, and he could not do weight lifting.  He got a "tweak," and sometimes stabbing pains, but otherwise there was a dull, constant pain with leg radiation which was much better than before surgery.  Physical examination showed straightening of the lumbar curvature, and no muscle spasms or tenderness.  Gait was not addressed.  Thoracolumbar ROM measurements showed flexion of 70 degrees and combined ROM of 160 degrees after repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the low back condition 10%, coded 5243 (IVDS), citing loss of motion in accordance with the VASRD General Rating Formula for Diseases and Injuries of the Spine.  The VA based rating on the C&P examination, citing IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months or forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on all examinations proximate to separation.  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 evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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:  Positive PPD, Hypercholesterolemia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Neither of the conditions were profiled or implicated in the commander’s statement, and neither failed 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 low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended positive PPD and hypercholesterolemia 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.  

The following documentary evidence was considered:

PD-2017-04175

AR20190012063, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXX

	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.

PD-2017-04175