RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100910 SEPARATION DATE: 20090430

BOARD DATE: 20120822

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E7 (19D, Calvary Scout) medically separated for a lumbar spine condition. He injured his back in 2001 and was subsequently diagnosed with non-surgical disc disease. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The lumbar spine condition, characterized as “herniated intervertebral lumbar discogenic disease,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Four other conditions (as identified in the rating chart below) were addressed by the MEB, and forwarded as meeting retention standards. The CI incidentally underwent a psychiatric evaluation by the MEB, yielding a diagnosis of anxiety disorder considered to meet retention standards. Although the condition was not submitted on the MEB’s DA Form 3947, it is presumed that this was an oversight. The PEB adjudicated the lumbar spine condition as unfitting, rated 10%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: The application cites only the language of the PEB’s DA Form 199 adjudication of the unfitting lumbar spine condition: “Back pain related to wear of body armor in Iraq in 2007. Imaging reflects degenerative disk disease L5-S1 with minimal narrowing with broad based central disk herniation at L4-L5. Exam noted tenderness to palpation, painful motion, positive 2/8 Waddells, no spasm, normal gait, normal strength, bilateral leg raises to 90 degrees and forward flexion to 90 degrees. The soldier is unfit for further military service due to inability to perform Soldier and MOS tasks. Rated 10% for painful motion.” The CI does not elaborate further or specify a request for Board consideration of any additional conditions.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44 (Enclosure 3, paragraph 5.e.2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The rating for the unfitting lumbar spine condition is addressed below; and, since none of the remaining PEB adjudicated conditions were requested for review, no 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 Army Board for the Correction of Military Records.

RATING COMPARISON:

ANALYSIS SUMMARY:

Lumbar Spine Condition. In 2001 the CI experienced persistent low back pain after his vehicle rolled down an embankment in a training accident. Over the next few years he suffered intermittent back pain which was managed with conservative measures and temporary profiles. His symptoms were greatly aggravated during a 2006-2007 deployment to Iraq, and remained severe after redeployment. Magnetic resonance imaging (MRI) revealed multi-level degenerative disc disease (DDD) with herniation at L4/5. Surgery was not recommended and response to a further trial of conservative treatment was inadequate. The narrative summary (NARSUM) noted constant pain rated 7-8/10 exacerbated by basic soldiering activities. No radicular symptoms were documented. The physical exam noted paravertebral tenderness without spasm or gait disturbance. Comprehensive neurologic findings were normal except for symmetric 4-5/5 motor testing of the lower extremities. At the VA Compensation and Pension (C&P) exam, performed prior to separation, the current acuity of symptoms and physical limitations were not documented. The VA physical examination documented normal gait and contour without spasm. Neurologic findings were normal, although the examiner stated there was “mild evidence of radiculopathy with Lasegue maneuver [provocative stretch of the nerve] on his left leg extending to the feet. There is no evidence of neuropathy with monofilament test bilaterally.”

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

The Board directs attention to its rating recommendation based on the above evidence. Although the PEB rated IAW VASRD 4.71a standards, the 90⁰ flexion quoted in the DA Form 199 was the passive ROM recorded in the MEB measurements (unless the PEB was citing the ROM from the recent C&P exam). The Board was thus left with a probative value judgment regarding application of the MEB’s active (i.e., most appropriate to rating) ROM evidence, or deference to the VA evidence which was more temporally proximate to separation. It was judged that the fairest decision, and the one more reflective of the overall disability evidenced from the outpatient record, was deference to the MEB goniometric evidence. There was no documentation of incapacitating episodes that would achieve a higher rating under those criteria. The Board deliberated whether a separate rating for radiculopathy via peripheral nerve coding could be supported in this case. The VA’s rating decision for conferring the peripheral nerve rating cited the “mild evidence of radiculopathy” quoted above from the C&P examiner. However, firm Board precedence requires a functional impairment tied to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases; and, there is no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy. Thus the Board cannot support a recommendation for an additional disability rating on this basis. 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 lumbar spine condition. The action officer recommended, and the Board concurred with, the code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

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, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §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.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110914, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXX

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 XXXXXXXXXXXXXXXXXXXXX, AR20120015826 (PD201100910)

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 XXXXXXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA