RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02274
BRANCH OF SERVICE:  Army	BOARD DATE:  20150305
SEPARATION DATE:  20040128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Tank Turret Repairer) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbar DDD and facet spondylopathies,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “lumbar DDD, w/o [without] abnormality” as unfitting, rated 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated. 

CI CONTENTION: The CI writes: “Back issues started well within my time in service, ultimately affecting my wellbeing physically, my relationship with my wife (intimacy), and many experiences with my children, i.e., picking them up, playing with them, running, etc.  The pain consistently effects my sleep.  Until this day, I never ever get a complete nights rest without daily medication, which has had negative impact on my stomach.  Once it was deemed that I was assessed an unfair rating, the government takes money away from me.  I still can’t run, I limp at times , can’t sit or stand for extended periods, and have a problem with intimacy.”  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20031107	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LUMBAR DDD…	5299-5237	0%	LUMBAR DDD…	5299-5242	0%	20031217	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  0%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20040506 (most proximate to date of separation (DOS)).  The 10% rating is based upon multiple, non-compensable, service connected disabilities.

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease (DDD), with out Neurologic Abnormality.  The CI was evaluated for low back pain with a magnetic resonance imaging on 10 January 2003.  It showed multilevel DDD with a disc herniation at L4-5.  Conservative management with medications, duty limitations, and injections were not adequate for the CI to return to full duty status and he was entered into the MEB process.  The narrative summary dated 15 September 2003 recorded a normal neurological examination with para-lumbar tenderness, but without spasm (normal tone).  A range-of-motion (ROM) was obtained a month later and is charted below.  Electrodiagnostic studies on 25 September 2003 were consistent with a right sided L5 radiculopathy.  At the MEB examination on 22 October 2003, the CI reported severe back pain since 2002.  The CI had pain with forward flexion.  The neurological examination was checked normal.  The MEB ROM measurements were on 31 October 2003.  The examiner noted that the extension was reduced secondary to an increased lordosis (normal lumbar curve) at rest.  The flexion was greater than the VA normal value.  

At the VA Compensation and Pension (C&P) exam performed on 17 December 2003, a month prior to separation, the CI reported a 1-year history of back pain without antecedent trauma.  Incapacitation was not recorded and there was no use of assistive devices.  On examination, the gait and posture were normal; ROM was painless and full.  The neurological examination was normal.  The back was non-tender.  

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~3 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	90 (95/95/95)	90	
Combined (240)	---	240	
Comment	Extension reduced secondary to increased lordosis	Painless motion	
§4.71a Rating	10% (4.59)	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0% for forward flexion greater than 90 degrees.  The reduced extension supports a higher rating of 10%; however, the examiner specifically noted that this was secondary to increased lordosis.  The VA C&P examination values were either normal or greater than VA normal values.  The Board considered the evidence.  The VASRD specifically notes that a reduced ROM can be considered normal when secondary to body habitus (VASRD §4.71a Note 2); this is the case here.  The MEB ROM values can then be considered to be normal as was noted by the VA examiner.  However, the MEB examiner documented that forward flexion was painful which supports a 10% rating under VASRD §4.59 (painful motion).  The evidence does not support the presence of an unfitting neuropathy at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the back 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 back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.59 and §4.71a.  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:

CONDITION	VASRD CODE	RATING	
Lumbar Degenerative Disc Disease	5237	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150012445 (PD201302274)

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 10% 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						    XXXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA