RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:   Army
CASE NUMBER:  PD1201605	SEPARATION DATE:  20080620
BOARD DATE:  20120501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (68K/Medical Laboratory) medically separated for a lumbar spine condition.  He injured his back in 1995 and suffered worsening complaints of back pain throughout the balance of his service.  He was diagnosed with degenerative disc disease (DDD), was not a surgical candidate, and the condition could not be adequately rehabilitated to satisfy the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Separate diagnoses of “herniated lumbar disc (L3-4 L4-5)” and “lumbar spondylosis (L4-5 L5-S1)” were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  Three additional conditions (as identified in the rating chart below) were forwarded as meeting retention standards.  An initial Informal PEB (IPEB) determined that the CI was Fit for Duty; a decision that was superseded following submission of further documentation and a request for a Formal PEB (FPEB).  The IPEB (via an Informal Reconsideration) then adjudicated the condition (appropriately consolidating the separate diagnoses) as unfitting, rated 20%, citing criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI concurred with the Informal Reconsideration, waived the FPEB, and was medically separated with a 20% disability rating.

CI CONTENTION:  “I was injured while on active duty during performance of my duties, and was found by the Physical Evaluation Board to be physically and medically unable to perform my duties as required by rank and MOS.  I had served 16 years, 9 months, and 10 days and was given a disability rating of 20% by the PEB.  The VA has given me a disability rating of 50%.”  The latter rating is combined for lumbar spine and left and right shoulder conditions.

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 lumbar spine condition is addressed below.  The three conditions adjudicated as not unfitting by the PEB were not associated with the referenced injury, not included in the referenced VA rating, and not otherwise referenced in the application; thus, they are not judged to have been requested for consideration, and are not within the DoDI 6040.44 defined purview of the Board.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB (Recon) – Dated 20080506 | VA (8 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Herniated Nucleus Pulposus, Lumbar Spine | 5299-5243 | 20% | DDD, Lumbar Spine | 5242 | 20%* | 20090212
Rosacea | Not Unfitting | No VA Entry | 20090212
Allergic Rhinitis | Not Unfitting | No VA Entry | 20090212
Esophageal Reflux (GERD) | Not Unfitting | No VA Entry | 20090212
No Additional MEB/PEB Entries | Other X 2 | 20090212
Rating:  20% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20090812.
*Increased to 40% (effective 20080621) based on subsequent VA exam dated 20090515 (11 months post-separation).

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The 1995 onset of back pain was associated with a fall from a truck.  The CI suffered continued pain, but there is no significant acuity apparent in the service treatment record (STR) until 1998 when the pain was exacerbated by a lifting incident.  Following that, the STR reflects frequent visits for back pain associated with lifting and various soldiering activities.  There were occasional complaints of radiating pain and paresthesias, but no weakness or protracted numbness.  Serial imaging confirmed stable disc disease at L3/4 and L4/5, with degenerative disease and mild left foraminal encroachment at L5/S1.  An electrodiagnostic study in March 2008 (3 months prior to separation) was interpreted as “L5-S1 nerve root irritability on the left side without acute radiculopathy.”  All neurological examinations in the record are normal.  Entries in the STR leading up to separation note gait disturbance, although some do not.  Most document spasm.  There are some comments directed at grossly decreased range-of-motion (ROM) without elaboration of severity, and other observations of grossly normal ROM.  The CI was assigned 72 hours quarters in April 2008, but there is no further documentation of incapacitating episodes.  The narrative summary (NARSUM) stated, “Pain is usually tolerable with medications unless exacerbated by activity.  The pain interferes with sleep.  Soldier experiences a pain flareup with extensive use.”  The physical exam noted a normal gait, mild tenderness and “no spasm or guarding”.  The ROM was noted as “grossly normal, but was potentially limited by pain.”  Neurological findings were normal.  At the VA Compensation and Pension (C&P) evaluation (8 months post-separation), the examiner noted “constant pain 5/10 with occasional flare ups ... worsened by lifting ... not able to work because is never comfortable even sitting down except for lying down.”  The VA physical exam noted antalgic gait and significant spasm.  Neurological findings were normal.  No radicular symptoms were documented.  Following a claim for increased evaluation, another VA evaluation was performed 11 months post-separation.  At that time, associated right leg pain was reported; and the pain was rated 5-8/10, worsened by walking and standing.  No intervening trauma or other clinical aggravation was documented.  Concurrent VA entries note that the CI was working on a farm.  That exam noted antalgic gait, with no comment on spasm or tenderness.  Neurological exam was normal.  A marked decrease in ROM (charted below) was recorded.  There were 3 goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM | MEB ~3 Mo. Pre-Sep | VA C&P ~8 Mo. Post-Sep | VA C&P ~11 Mo. Post-Sep
Flexion (90⁰ Normal) | 90⁰ | 50⁰ | 20⁰
Combined (240⁰) | 215⁰ | 145⁰ | Extension 10⁰
Comments | Antalgic gait. | Antalgic gait. | Antalgic gait.
§4.71a Rating | 20% | 20% | 40%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 referenced the ROM values charted above (from physical therapy) which would achieve only a 10% rating; but, noted the presence of an abnormal gait on a “recent exam” (presumably an STR entry, not the NARSUM), which was the basis for the PEB’s higher 20% rating.  The VA’s initial 20% rating was consistent with the ROMs from the initial post-separation C&P evaluation.  The PEB’s coding choice of 5243 (intervertebral disc syndrome) permitted the flexibility for rating under the VASRD §4.71a formula for incapacitating episodes, but was moot to rating under the general spine formula compared to the VA code 5242 (degenerative arthritis of the spine).  The VA decision which increased the rating to 40% cited the 20 degrees flexion from the follow-up (11 month post-separation) evaluation.  Members considered the probative value of the latter evidence in support of a 40% recommendation.  Although the outpatient evidence from the STR would support an argument that the near normal ROM from the physical therapist and grossly normal ROM stated in the NARSUM were not a consistent finding, there is no corroboration of such severely limited ROM as that from the 11 month VA exam.  All members agreed that this sole data point did not carry sufficient probative weight in support of a 40% rating recommendation.  The evidence for incapacitating episodes would support only a 10% rating under that formula.  There was no evidence for a ratable neuropathy to support additional rating on that basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Herniated Nucleus Pulposus, Lumbar Spine | 5299-5243 | 20%
RATING | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120831, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010166 (PD201201605)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA