RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05338
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070627

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Petroleum Supply Specialist, medically separated for “herniated disk L5-S1” with a disability rating of 10%.  

CI CONTENTION:  “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 - 20070518	VARD - 20080220	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Disc L5-S1	5243	10%	Intervertebral Disc Syndrome	5243	20%	20070925	
Left Knee Pain	Not Unfitting	Left Knee Strain	5299-5260	10%	20070925	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Herniated Disc L5-S1.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began on 29 December 2006 after a fall.  X-rays were negative.  He was treated with medications and quarters for 48 hours.  His pain persisted and radiated into the left lower extremity (LLE).  This showed a herniated disc at L5-S1 with posterior displacement of thecal sac and descending right L5-S1 nerve root.  At the 18 January 2007 orthopedics clinic appointment, the CI was noted to have tenderness of the lumbar spine.  There was weakness in all muscle groups of the right lower extremity (RLE), which appeared to be from discomfort.  Muscle tone and gait were normal.  The sensory and motor examinations were normal when seen in primary care on 20 March 2007.  The CI elected not to pursue surgery.  

During the 17 April 2007 MEB examination (recorded on DD Forms 2807 and 2808) 2 months prior to separation, the CI reported numbness in his toes.  The physical examination showed tenderness to lumbar area and positive straight leg raise (test for underlying herniated disk).  

The 17 April 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of pain in the lower back, which impaired duty and the wear of body armor.  He was able to perform light office duties and daily living activities.  Physical examination showed a normal gait.  The spine had no deformity or step off.  There was tenderness over the right para-spinal muscles.  The range of motion (ROM) was decreased due to pain, but the CI was able to sit at 90 degrees of flexion without obvious discomfort.  The straight leg raise was negative bilaterally, though it reportedly increased numbness in the RLE.  At the 18 April 2007 physical therapy range of motion (ROM) study, 2 months prior to separation, flexion was 40 degrees (normal 90) and combined ROM was 165 degrees.  Pain was noted on all measurements.  

At the 25 September 2007 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported numbness and tingling but no stiffness or weakness.  He was working as a night security guard.  Pain was reported as constant, localized, aching, sharp and cramping.  Pain was elicited by physical activity and standing.  The CI reported incapacitating episodes as often as twice a year, but the duration was not recorded.  No bowel or bladder dysfunction was reported.  The physical examination showed muscle spasms and tenderness.  Straight leg raising was positive on the left and right.  No ankyloses of the lumbar spine was noted.  During ROM testing, flexion was 30 degrees and combined ROM was 80 degrees.  All measurements stopped at the onset of pain.  Spine function was limited following repetitive use with pain as the major factor.  The spine was symmetrical with normal curvature.  Signs of intervertebral disc syndrome were noted with sensory deficits in L1-L5.  Lower extremity reflexes were 2+.  Muscle mass was normal.  No specific comment was made regarding motor function.  The gait was abnormal due to the CI dragging his right foot and using a cane.  X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome) citing positive tenderness with ROM limited by pain.  The VA rated the back condition 20%, coded 5243, based on the C&P examination, citing combined ROM of the thoracolumbar spine not greater than 120 degrees.  

The panel noted the NARSUM showed the CI was able to sit with his back flexed to 90 degrees without discomfort.  The ROM measured the next day in physical therapy showed flexion limited to 40 degrees.  The VA measurements showed flexion limited to 30 degrees, but were only to the onset of pain for all measurements.  The panel also observed that the CI showed sensory deficits from L1 to L5 on the right, which is not consistent with the pathology in evidence.  On the VA examination, the CI had a limp and was dragging his right foot.  A motor loss was not recorded though.  The panel assigned a higher probative value to the MEB NARSUM and physical therapy ROM examinations.  It agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  There was no evidence of intervertebral disc syndrome 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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5243.  

Contended PEB Condition:  Left Knee Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement.  It was judged to meet retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  The April 2007 MRI studies were normal.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended left knee condition, the panel agrees that it cannot recommend it for additional disability rating.  There were 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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Herniated Disc L5 S1	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170614, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007400, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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.

Sincerely,					      
Enclosure