RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100886 SEPARATION DATE: 20090309

BOARD DATE: 20120730

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63A / Tank mechanic), medically separated for intervertebral disc syndrome of L4/L5. The CI developed lower back pain in 2005 following a motor vehicle crash which was “severely aggravated after deployment to Iraq” where he required injected medications for symptoms. The CI underwent physical therapy and chiropractic treatment, and orthopedic consultation determined that he was not a surgical candidate for L4/L5 intervertebral disk degeneration. The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS), wear personal protective equipment or satisfy physical standards. He was issued a permanent L3 (with H2) profile and referred for a Medical Evaluation Board (MEB). Adjustment disorder with mixed emotional features and insomnia, identified in the rating chart below, were also identified and forwarded by the MEB as meeting retention standards. The PEB adjudicated the lower back condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining condition(s) were determined to be not unfitting or non-compensable. The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: The CI elaborated no specific contention in item # 3 of his application.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; and, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” Although the Board will review the ratings for the unfitting lumbar condition, none of the other PEB conditions were requested for consideration and therefore do not meet the criteria prescribed in DoDI 6040.44 for Board purview. The PEB condition of adjustment disorder with mixed emotional features is not compensatory IAW Department of Defense Instruction (DoDI) 1332.38, enclosure 5. The VA diagnosed Major depressive disorder was not noted in the PEB and is not within the scope of the PDBR. 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 Army Board for the Correction of Military Records (ABCMR).

RATING COMPARISON:

* MDD, 9434, increased to 50%; back, 5243, increased to 10%; and IBS, 7319, increased to 10% all effective 20100830 (combined 60%)

ANALYSIS SUMMARY: The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12 month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Lumbar Intervertebral disc degeneration condition. There were 2 goniometric range of motion (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.

At the MEB exam and addendum, the CI reported low back pain with intermittent left leg paresthesias and radiation into his right hip/pelvic area. He was unable to tolerate body armor. The physical exams noted normal gait, tenderness to the lumbar area, and normal motor and sensory exams. Formal ROMs from PT were referenced in the NARSUM and are charted above. MRI indicated a mild bulge at the L4-5 level without significant foraminal narrowing.

At the VA Compensation and Pension (C&P) exam 1 month after separation, the CI reported a constant dull ache of the lower back, with increased discomfort with prolonged positioning, prolonged standing/walking, and with repetitive bending and lifting. He complains of pain occasionally radiating from the lower back and to both lower extremities to the level of the knees. Exam indicated a normal gait with full painless ROM without tenderness or spasm, with no additional loss functional on repetition. There was no focal motor or sensory deficit. The VA rated this exam at 0%. A C&P exam 17 months post-separation indicated objective evidence of pain on active ROM to the VA normal limits. There was normal gait, no spasm or tenderness and normal motor and sensory exams. The VA rated this remote exam at 10%.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA used disability code 5243 (Intervertebral disc syndrome) and the general rating formula for diseases and injuries of the spine. The spine formula includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Board considered that even if the documented episodes of injected medication (Toradol - ketorolac analgesic) were adjudged as equivalent to a periods of incapacitation, there were fewer than 14 documented during the 12 months prior to separation for any rating higher than 10% under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Although the first VA exam was closer to the date of separation, the preponderance of the CI’s treatment records indicated pain limited thoracolumbar ROMs, and the Board adjudged that the MEB exam had the highest probative value for rating. 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’s 10% adjudication for the lumbar intervertebral disc degeneration condition.

Contended PEB Conditions. No conditions were contended by the CI.

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 intervertebral disc degeneration 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110812, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXX, AR20120013945 (PD201100886)

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 XXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA