RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2012-01830
BRANCH OF SERVICE:  Army	BOARD DATE:  20141218
SEPARATION DATE:  20071208

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13B/Cannon Crewman) medically separated for lumbar disc degeneration.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty; however, his profile indicated he could do a modified physical fitness (PT) test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “Lumbar spondylosis” and “Lumbar disc degeneration,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (sensorineural hearing loss and myopia) for PEB adjudication.  The Informal PEB adjudicated “lumbar disc degeneration with disc bulge at L4-5 and facet arthropathy at L4-5 and L4-S1” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “It seemed like they were more worried about just getting me out to clear room than the actual conditions that were putting me out.  My life will never be the same because of what happened to me in the military and I would like to be treated like I served.  With honor!”

His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition, along with the contended hearing loss and myopia are addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s implied contention for the ratings determined to be not unfitting by the PEB; and, emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.

RATING COMPARISON:

Service IPEB – Dated 20071017 | VA - (~3 Mos. Post-Separation)*
Condition | Code | Rating | Condition | Code | Rating | Exam
Lumbar Disc Degeneration | 5299-5242 | 10% | Lumbar Spondylosis … | 5239 | 10% | 2008
Hearing Loss | Not Unfitting | Left Ear Hearing Loss | 6100 | 0% | 2008
| | Right Ear Hearing Loss | 6100 | NSC | 2008
| | Tinnitus | 6260 | 10% | 2008
Myopia | Not Unfitting | Myopia Claimed … | 6079 | NSC | 2008
Other x 0 (Not in Scope) | Other x 6 | 2008
Rating:  10% | Combined:  20%
* Derived from VA Rating Decision (VARD) dated 20080502 (exams 20080212 and 20080407).  

ANALYSIS SUMMARY:

Low Back Condition.  The narrative summary (NARSUM) noted that the CI was injured in a fire mission in Afghanistan in 2006.  Throughout the next 2 years, he experienced low back pain that often awakened him at night, but had no documented concerns regarding decreased strength, radiating pain, abnormal sensation, or loss of bowel or bladder continence.  His examinations remained stable, documenting “normal” (non-goniometric) range-of-motion (ROM) of his thoracolumbar spine, normal sensation, normal gait and strength.  Imaging showed bulging and spondylosis (degeneration) of two discs in the lower back (L4-L5 and L5-S1), but no narrowing of the spinal canal or foraminae (the openings where the nerves exit from the spine).  The MEB physical exam, 4 months prior to separation (performed by PT using a goniometer and referenced in the NARSUM) noted thoracolumbar flexion of 60 degrees (normal 0-90 degrees) with painful motion and muscle spasm, but with normal gait and contour.

The post-separation VA rating decision documented a thoracolumbar ROM of 80 degrees of flexion with pain on motion, but a normal gait and no findings of additional functional loss due to incoordination, fatigability, weakness, or lack of endurance following repetitive examination.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% (coded analogous to 5242 - degenerative arthritis), citing the PT exam and ROM “limited by pain.”  The PT ROM of 60 degrees forward flexion warrants a 20% rating under the general rating formula for the spine.  The VA rating of 10% (coded 5239 - spondylolisthesis) was from a post-separation exam, which documented improved forward flexion to 80 degrees.  There were no periods of physician prescribed bed rest noted in the record and pain (whether or not it radiates) is considered under the general spine formula.  There was no associated peripheral nerve deficit noted for any separate rating.  There was no abnormal gait or abnormal spine contour noted and rating in this case was predominately based on ROM measurements.

The Board considered that the probative values of the detailed PT and VA exams were significantly greater than the short treatment note ROMs, and that the PT exam had the highest value for rating at the time of separation.  Given the 60 degree forward flexion, the Board adjudged that the CI met the 20% criteria for “thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that sensorineural hearing loss and myopia (vision) were not unfitting.  The Board’s threshold for countering fitness determinations remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hearing and vision conditions were not profiled (H1, E1) or implicated in the commander’s statement and were not judged to fail retention standards.  The VA-rated tinnitus was considered with hearing.  The hearing, tinnitus and vision conditions were reviewed by the Board.  There was scant performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended hearing (including tinnitus) and vision conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  In the matter of the lumbar disc degeneration condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5239 IAW VASRD §4.71a.  In the matter of the contended hearing and vision conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Lumbar Disc Degeneration | 5299-5239 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150006395 (PD201201830)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2012-01830