RECORD OF PROCEEDINGS PHYSICAL
DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200373 SEPARATION DATE: 20090307
BOARD DATE: 20121127
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was a National Guard SSG/E‐6 (68W3C/Medic), medically separated for
spinal stenosis of the lumbar spine. The CI developed atraumatic back pain after increased op‐
tempo of being in Iraq. Despite one epidural spinal injection, three facet joint injections at
L5/S1, Neurontin for neurogenic pain, narcotics, home traction, transcutaneous electrical nerve
stimulation (TENS) unit, physical therapy (PT), chiropractor and neurology consultations the CI
failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy
physical fitness standards. He was issued a permanent L3 and referred for a Medical Evaluation
Board (MEB). The MEB forwarded chronic low back pain (LBP) secondary to degenerative disk
disease (DDD) on the DA Form 3947 to the Physical Evaluation Board (PEB). Anxiety disorder,
obstructive sleep apnea (OSA),
left shoulder pain, right carpal tunnel syndrome and
hypercholesteremia conditions, identified in the rating chart below, were also identified and
forwarded by the MEB as medically acceptable. The PEB adjudicated spinal stenosis of the
lumbar spine condition as unfitting rated 10%, with application of the Veteran’s Affairs
Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not
unfitting. The CI appealed to the U.S. Army Physical Disability Agency for reconsideration,
which affirmed the PEB findings. The CI was then medically separated with a 10% disability
rating.
CI CONTENTION: “My condition was worse than previously thought. I had surgery on my back
due to nothing else helping i.e., shots, medication, physical therapy, and chiropractic care.
Along with the back pain, I was having numbness in my left foot with some foot drop while
walking. Initially the surgeon was going to do 1‐3 discs. He ended up doing 5 (L2‐S1) due to it
being worse than what he thought it was. Since the surgery, I have had pain and numbness on
the inside of my left knee along with back pain, from walking and standing on concrete, tile or
any other hard floor surface.”
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in 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 ratings
for unfitting conditions will be reviewed in all cases. The low back pain condition requested for
consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is
accordingly addressed below. The other requested conditions (left knee and left foot drop) are
not within the Board’s purview. 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 Correction of Military Records.
RATING COMPARISON:
Admin Correction Service PEB– Dated 20090211
Rating
10%
Condition
Spinal Stenosis Lumbar
Spine …
Anxiety Disorder
OSA
Left Shoulder Pain
Right Carpal Tunnel
Syndrome
Hypercholesteremia
VA (2 Mos. Post‐Separation) – All Effective Date 20090308
Code
5238
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Not Unfitting
Condition
DDD Lumbosacral Spine
PTSD
Sleep Apnea
Degenerative Joint Disease
(DJD) Left Shoulder
Right Carpal Tunnel Syndrome
High Cholesterol
Code
5243
9411
6847
5010‐5203
8515
7099‐7005
Rating
20%*
30%
50%
10%
10%
NSC
Exam
20090528
20090528
20090528
20090528
20090528
20090528
20090528
No Additional MEB/PEB Entries
Combined: 10%
0% X 1 / Not Service‐Connected x 3 (Include above)
Combined: 80%
*Prior L‐spine, 5243 at 10% from 2007 to 2008 entry on AD. No change to L‐Spine rating effective 20090528;* Temporary 100%
rating assigned effective 20090909 thru 20091031 based on surgical or other treatment necessitating convalescence‐ reverts to
prior 20% rating effective 20091101.
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment with which his service‐incurred condition continues to
burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the
role nor the authority to compensate members for anticipated future severity or potential
complications of conditions resulting in medical separation. This role and authority is granted
by Congress to the Department of Veterans’ Affairs (DVA). The Board utilizes DVA 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 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.
Spinal Stenosis of the Lumbar Spine Condition. The goniometric range‐of‐motion (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.
in DoDI 6044.40, however, resides
PM&R ~3 Mo. Pre‐Sep
MEB ~2.5 Mo. Pre‐Sep
PT ~1.5Mo. Pre‐Sep
VA C&P ~2.5 Mo. Post‐Sep
(20090123)
(20090528)
Thoracolumbar ROM
Flexion (90⁰ Normal)
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
Comment: Notes 2
(truncate at VA
normal) and 4 (round
to nearest 5⁰) were
applied
§4.71a Rating
(20081209
Abn with pain
Abn with pain
Nml With pain
Nml With pain
Nml
Nml
Tenderness on
palpation; straight leg
raise nml; Waddell’s
neg; no antalgic gait;
“no limb weakness”;
neurologic without
deficits
10%
(20081223
90⁰ (110⁰)
30⁰ (28⁰)
30⁰ (28⁰)
30⁰ (32⁰)
30⁰ (40⁰)
30⁰ (38⁰)
240⁰ (APEB 236⁰)
Decreased ROM
secondary to
discomfort, pain
limited; Gait nml;
motor intact; no
muscle spasms; (see
text)
10%
75⁰
30
25⁰
25⁰
50⁰*
10⁰*
25⁰
25⁰*
25⁰
25⁰
160⁰
Tenderness; neg
SLR; motor 5/5 BLE
10%
*Pain flare with repetitive
motion; Left IL tender to
ROM/direct palpations;
gait nml; reflexes nml; SLR
nml; no great toe
dorsiflexion weakness; no
muscle spasms;
sensory/motor nml
20%
The CI had complaints of
lower extremity radicular symptoms; however, an
electromyelogram (EMG) performed in October 2008 was normal .A lumbar spine magnetic
resonance imaging (MRI) study demonstrated congenital lumbar stenosis, superimposed
left
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PD1200373
lumbar stenosis at L2‐3 through L5‐S1, multilevel disk herniations in three lower levels
demonstrating disc bulge or shallow disc herniation L2‐L3. The CI was evaluated by Physical
Medicine and Rehabilitation (PM&R) in December 2008, 3 months prior to separation, which
indicated no difficulty writing, no limb weakness, no gait abnormality and no difficulty walking.
The physical exam findings are summarized in the chart above. The MEB examination,
performed 2 months prior to separation noted subjective Waddell signs of never being pain
free, whole leg numbness, emergency room visits and the requirement for a back brace; and an
inability to lift greater than 25 pounds; Objective Waddell 3/5: axial loading, simulated rotation,
seated straight leg raise; pain limited motion. The physical exam findings are summarized in
the chart above. An MRI performed in December 2008 found degenerative changes. PT exam
performed a month prior to separation is summarized above. A treatment note indicated that
the CI had started working out for the upper body, but also reported that the working out lifting
weights for the upper body strength was an aggravating factor.
The VA Compensation & Pension (C&P) exam indicated daily low back pain with radiation to the
left leg with intermittent numbness precipitated by long walking, standing or sitting. The
physical exam findings are summarized in the chart above. There were no episodes of
incapacitation in the last year. VA records and the CI’s contention indicated lumbar spine
surgery in September 2009 with improvement in spine ROM in VA exam in 2010 (forward
flexion to 80 degree, which met the 10% rating criteria), with a continuation of a 20% rating
IAW VA‐specific rules regarding sustained improvement.
The Board directs attention to its rating recommendation based on the above evidence. The
Army coded the spinal stenosis of the lumbar spine condition 5238 Spinal stenosis rated at 10%.
“Rated IAW VASRD 4.59 for painful motion in the face of preserved range of motion and
awarded the minimum compensable rating for the lumbar spine.” The VA coded the condition
as 5243 Intervertebral disc syndrome rated at 20%. The General Rating Formula for Diseases
and Injuries of the Spine considers the CI’s pain symptoms “With or without 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 MEB examination noted normal ROM with painful motion, and the PT exam which was
after the MEB and closer to the date of separation, documented worsened pain limited motion
at the 10% criteria range. The VA examination documented more limited ROM with flexion of
50 degrees with repetitive motion at the 20% criteria range. The Board noted that the VA
exam, post‐separation radicular symptoms and back surgery were within the 12‐month period
for special Board consideration. The service record documented pre‐separation worsening
following the MEB that combined with the VA exam near separation, led to reasonable doubt
that the CI’s worsening back symptoms and worsening ROM limitations continued following the
PT ROMs, to the point where the back was closer to the disability picture envisioned by the 20%
rating criteria. The Board majority therefore considered the VA exam to have the higher
probative value for rating. After due deliberation, considering all of the evidence and mindful
of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board majority
recommends a separation rating of 20% for the chronic LBP condition coded 5238.
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 spinal stenosis of the lumbar spine condition, the Board by
a vote of 2:1 recommends a disability rating of 20%, coded 5238 IAW VASRD §4.71a. The single
voter for dissent (who recommended no recharacterization at 10%) did not elect to submit a
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PD1200373
minority opinion. 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:
UNFITTING CONDITION
Spinal Stenosis of the Lumbar Spine
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120413, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
VASRD CODE RATING
20%
20%
COMBINED
5238
XXXXXXXXX, DAF
President
Physical Disability Board of Review
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
For XXXXXXXX, AR20120022683 (PD201200373)
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.
4
PD1200373
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl
XXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5
PD1200373
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