RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-05856
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090820

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

CI CONTENTION:  “I still have all of the pains that I always have even after having surgery.”  He also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20090720	VARD – 20100316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS…With Intermittent Radiculopathy 	5243	10%	Low Back Pain with Herniated Intervertebral Disc and Radiculopathy	5243	0%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

IVDS with Intermittent Radiculopathy.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in March 2008 during unit combative training when he was thrown to the ground and landed on his back.  The next day during a unit run, he felt more low back pain with numbness and pain radiating into his right buttock and posterior right leg.  Three sets of epidural steroid injections (November 2008, January 2009 and February 2009) were not helpful, and a subsequent facet block on the right side, did not provide relief.  Surgery was recommended, but he declined.  

At the 9 March 2009 neurosurgery consult, 5 months prior to separation, the CI reported back and right leg pain and numbness.  Physical examination showed a normal gait and stance with lumbar tenderness and spasm.  Motor function and reflexes were normal, and sensory examination noted decreased sensation in the lateral right foot.  There was pain with flexion and extension, however measurements were not provided.  A lumbar MRI on 11 March 2009 revealed a central L5-S1 protruding disc resulting in mass effect on the exiting right S2 nerve root; and an L4-L5 broad based disc with persistent central disc protrusion, resulting in spinal canal stenosis with abutment of the right L5-S1 nerve roots.   Electro-diagnostic studies on 9 July 2009 showed evidence of mild acute L5 radiculopathy but peripheral neuropathy. The 15 June 2009 MEB NARSUM examination, 2 months prior to separation, noted CI complaints of daily pain that interfered with military specialty performance as well as sleep.  Physical examination showed a normal gait and no abnormal spinal contour, but there was tenderness and slight spasm.  Muscle strength was 5/5 and deep tendon reflexes were 2+.  Straight leg raise test was positive on the right.  Range of motion (ROM) studies showed flexion of 85 degrees (normal 90) and combined ROM of 230 degrees (normal 240).  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (IVDS), citing forward flexion of 85 degrees and combined ROM of 229 degrees.  The VA rated the back condition 0%, coded 5243 based on the STR, citing the inability to determine the severity of the CI’s current symptoms.  Panel members 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 combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the  NARSUM examination.  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 documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  

Radiographic and electro-diagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations revealed no objective findings of radiculopathy that would impact duty performance.  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).”  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 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.  

ARXXXXXXXXXXX, XXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXX:

	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