RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02151
BRANCH OF SERVICE:  Army	BOARD DATE:  20140620
SEPARATION DATE:  20081107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (11B40/Infantryman) medically separated for degenerative arthritis of the spine.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back pain (LBP) was found medically unacceptable and forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The informal PEB adjudicated “degenerative arthritis of the spine” as unfitting, rated 20%.  The CI made no appeals and was medically separated.

CI’s CONTENTION:  The CI elaborated no specific contention in his application.

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 degenerative arthritis of the spine is addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – dated 20081010 | VA – (5 mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Degenerative Arthritis of the Spine | 5242 | 20% | Degenerative Disk Disease | 5242 | 40% | 20090420
(No Other Items In Scope) | Other x 7 (Not in Scope) |
Combined 20% | Combined:  60%
Derived from VA Rating Decision (VARD) dated 20090629 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Pain.  In 2001, the CI developed LBP after doing squatting exercises.  Magnetic resonance imaging showed a broad-based disc bulge at L5-S1.  He was treated with medication, physical therapy and epidural steroid injections.  However, the LBP persisted and a MEB was initiated.  The MEB physical examination (PE) was on 17 September 2008.  The CI was in no acute distress and his gait was non-antalgic (he did not walk with a limp).  PE of the lower back revealed some midline tenderness to palpation at L5-S1.  Straight leg raise (SLR) was negative bilaterally.  Muscle strength and deep tendon reflexes (DTRs) in the legs was normal.  Range-of-motion (ROM) was measured and is summarized in the chart below.

The CI was separated from service in November 2008.  Five and a half months later, he had a VA Compensation and Pension exam.  At that time his gait was antalgic (he walked with a limp).  PE of the lower back revealed some tenderness and spasm from L1 down to the sacrum.  SLR was positive.  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)

MEB ~ 7 weeks Pre-Sep
(20080917)

VA C&P ~ 23½ weeks Post-Sep
(20090420)

Flexion (90 Normal) | 50 | 25
Extension (30) | 10 | 5
R Lat Flexion (30) | 25 | 25
L Lat Flexion (30) | 30 | 15
R Rotation (30) | 15 | 30
L Rotation (30) | 20 | 30
Combined (240) | 150 | 130
Comment | Pain with motion | Painful motion

The Board directs attention to its rating recommendation based on the above evidence.  The Board noted the disparity in the two examinations described above.  The September 2008 MEB exam was performed just 7 weeks prior to separation and therefore had greater probative value.  At that exam, thoracolumbar forward flexion was 50 degrees.  IAW the VASRD §4.71a, a rating of 20% is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees. After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI clearly had neurological symptoms.  However, there was insufficient evidence of muscle weakness and there was no performance-based evidence that the radicular condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at separation.  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 degenerative arthritis of the spine.

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 chronic back 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131101, 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, AR20150002617 (PD201302151)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02151