RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-04271
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081211

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” with a disability rating of 20%.   

CI CONTENTION:  “...recently had surgery (back)…request the PDBR 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 - 20080918	VARD - 20090811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine 	5242	20%	Degenerative Arthritis of the Thoracic and Lumbar Spine	5242	40%	20090114	
Mild Cognitive Disorder	Not Unfitting	Traumatic Brain Injury	8045	40%	20090114	
Mild Obstructive Sleep Apnea	Not Unfitting 	Sleep Apnea	6847	50%	20090114	
Neck Pain 	Not Unfitting	Neck Strain	5237	10%	20090114	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained a compression injury to the back following a parachute landing (with a loss of consciousness) in April 2007.  He was treated conservatively and returned to duty, but experienced back pain shortly after, and was then treated with analgesics and temporary profiles.  In May 2007, he continued to have difficulties after being assigned to a unit with marching and physical training requirements.  A lumber spine MRI in January showed degenerative disc height reduction at T12-L1 with a right paracentral disc extrusion causing moderate canal stenosis and mild spinal cord deformity.  There were also degenerative changes at L4-L5, but no neuroforaminal narrowing or other abnormalities.  

During the 29 February 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, physical examination revealed no tightness or spasm, and full range of motion (ROM) in all planes with no evidence of fatigue, weakness, pain, lack of endurance, instability or in coordination with repetition. The 12 March 2008 physical therapy (PT) goniometric ROM study for the MEB showed flexion at 60 degrees (normal 90) with a combined ROM of 225 degrees (normal 240) and limited motion due to pain.  A physical medicine examination in March 2008, 9 months before separation, showed normal gait, reflexes and strength.  With flexion, the CI was able to reach his finger tips to mid- tibia (more than 60 degrees) with some back pain.  The 11 July 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of back pain located directly over the spine at the mid thoracic and lower lumbar regions.  Physical findings were transcribed from the February MEB examination and showed full active ROM in all planes except in extension at approximately 10 degrees.  Heel-toe walking was done without difficulty, and bilateral straight leg raise tests were negative.  Deep tendon reflexes were 2+ and equal, and there was no paravertebral spasm or tightness.  

At the 14 January 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported stiffness along with lumbar and thoracic spine pain.  Physical examination showed thoracolumbar flexion to 15 degrees and a combined ROM of 90 degrees, with motion limited by pain.  Guarding, tenderness and spasm were noted in the cervical, lumbar and thoracic spine.  Upper and lower extremity motor was 5/5, and spinal muscle strength was 4/5 with sensation decreased in the palm of the hand and medial thigh bilaterally.  Straight leg raise testing was positive, and gait was abnormal with leg stiffness and limited hip motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the spine condition 20%, coded 5242 (degenerative arthritis of the spine), citing painful ROM limiting flexion to 60 degrees with flares of pain further decreasing ROM by an estimated 5 percent.  The VA rated the spine condition 40%, coded 5242, based on the C&P examination, citing thoracolumbar flexion of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar 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) as reported on the MEB and PT ROM examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  Panel members noted that the limitation of thoracolumbar flexion reported at the C&P examination suggested consideration of the next higher rating of 40%.  In assigning probative value to these conflicting examinations, the panel noted the ROM values reported by the VA examiner were significantly worse than those reported by the MEB/PT examiners, but there was no record of recurrent injury or other development in explanation of the more marked impairment.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  Panel members noted that two separate ROM measurements prior to separation warranted a rating of 20% or lower, and agreed that these examinations were more consistent with the STR and more reflective of the anticipated severity based on the clinical pathology.  The panel therefore relied more heavily on the PT/MEB examination measurements.  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 spine condition.  

Contended PEB Conditions:  Mild Cognitive Disorder, Mild Obstructive Sleep Apnea, and Neck Pain. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The mild cognitive disorder and mild obstructive sleep apnea were not profiled or implicated in the commander’s statement, and did not fail retention standards.  The neck condition was profiled but not implicated in the commander’s statement, and did not fail 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 spine condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the contended mild cognitive disorder, mild obstructive sleep apnea, and neck pain, 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-2017-04271

AR20190011775, XXXXXXXXXXXXXXXX 

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-2017-04271