RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00200
BRANCH OF SERVICE:  Army	BOARD DATE:  20141017
SEPARATION DATE:  20070217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63B/Light Wheeled Vehicle Mechanic) medically separated for a chronic low back pain (LBP) condition.  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 LBP condition, characterized as “low back pain with radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AR 40-501.  A foot condition, pes cavus also submitted by the MEB, was found not unfitting by the PEB.  The Informal PEB adjudicated “chronic low back pain…rated as spasm…” as unfitting rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI 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 LBP with spasms condition is addressed below; no additional 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20061212	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain w/Spasms	5243	10%	S1 Nerve Root Compression [Sciatic Nerve Distribution]
RLE, Associated with s/p Lumbar Disc Herniation L5 – S1, IVDS 	8520	20%	20070323	
			Status Post Lumbar Disc Herniation L5 – S1, IVDS	5243-5239	10%	20070323	
Other x 1 (Not in Scope)	Other x 1		
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070523 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  In accordance with DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.
Chronic Low Back Pain w/Spasms Condition.  Review of the treatment records reveals that, when he was in the Air Force, the CI had experienced an episode of LBP which had resolved without sequellae and the history of LBP was waived for his enlistment into the Army.  In May 2006, 9 months prior to separation, the CI was hospitalized overnight for the onset of acute LBP secondary to a sporting event during duty hours.  Continued LBP was accompanied by right leg pain and minimal left quadriceps muscle weakness.  A physical therapy note, 9 months prior to separation, noted “constant pain in the lumbosacral area” (7/10 at rest, and 9/10 with activity), worse with bending, lifting, tying shoes or sitting greater than 15 minutes.  The examination noted bilateral lumbar muscle tenderness and limited range-of-motion (ROM) and reported a diagnosis of “acute lumbosacral strain/sprain with (+) [right] SLR test.”  The permanent (L3) profile listed the diagnosis as back pain, but also with herniated disc (HNP) with radiculopathy, and severely restricted the CI from activities.  The commander’s memorandum to the PEB noted the CI’s visible “struggles when walking or moving.”

At the MEB exam, the CI reported back pain.  The MEB physical exam noted decreased ROM in all planes.  The narrative summary noted the presence of “low back pain with decreased range of motion” and “paravertebral muscle spasm.”  At the VA Compensation and Pension (C&P) examination, performed a month after separation, the CI reported constant LBP, radiating into the right leg, “characterized as aching burning and sharp,” elicited by activity and relieved by rest.  Upon examination of the spine, tenderness to palpation was noted.  After repetitive use, ROM was limited by pain, weakness and lack of endurance, but without additional loss of ROM, and without spasm, asymmetry, ankylosis, abnormal gait or abnormal spinal curvature.

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)	PT ~7 Mo. Pre-Sep
(20060705)	PT evaluation for MEB 
~4 Mo. Pre-Sep
(20061003)	VA C&P ~1 Mo. Post-Sep
(20070323) 	
Flexion (90 Normal)	60	50	70	
Extension (30)	25	25	30	
R Lat Flexion (30)	35	20	30	
L Lat Flexion (30)	35	20	30	
R Rotation (30)	30	25	30	
L Rotation (30)	30	25	30	
Combined (240)	195	165	220	
Comment	+ muscle tenderness, +right straight leg raise (SLR) test. Right leg weakness	ROM not limited by pain. NARSUM noted vertebral muscle spasm	No spasm, normal gait and posture, +lumbar muscle tenderness, repetitive use limited by pain	
§4.71a Rating	20%	20%	10%	

The Board directs its attention to its rating recommendation based upon the above evidence.  The LBP condition, characterized as “low back pain with radiculopathy” was forwarded to the PEB, which adjudicated “chronic low back pain…rated as spasm” as unfitting, rated 10% under VASRD code 5243.  The Informal PEB noted that the “combined passive ranges of motion equal 235 degrees.”  The VARD rated the LBP as intervertebral disc syndrome, under VASRD code 5243-5239, also rated at 10%.  Goniometric ROM of the thoracolumbar spine, measured specifically for the MEB, noted an active, rather than passive, flexion of 50 degrees, which meets the criteria for a maximum rating of 20%, under the guidance outlined in the VASRD §4.71a, “General Rating Formula for Diseases and Injuries of the Spine.”  Alternatively, the evidence, including ROM with 70 degrees of flexion, recorded at the VA C&P examination, a month after separation, met the ROM criteria only for a 10% rating.

The Board noted both the ROM disparity between the MEB and the VA examinations, with implications for rating recommendation, and also the close temporal alignment of the VA evidence with the DOS.  In order to assess the fairness of PEB rating determination based on ratable severity at the time of separation, the Board deliberated the probative value of these conflicting evaluations and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  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 recommends a disability rating of 20% under code 5243 for the LBP condition.

Peripheral neuropathy.  The Board considered whether an additional rating could be recommended under a peripheral nerve code for the associated and well-documented sciatic, specifically right S1, motor radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of the neuropathy is appropriately subsumed in the spine rating, and the sensory component was inconsequential to fitness.  However, the Board members deliberated whether the right leg weakness in evidence impacted fitness to an extent that would justify a separate rating.

In a follow-up examination after his injury, the CI was noted to have constant pain radiating into his right foot with decreased strength (4/5) in the right leg.  Radiographic imaging, 7 months prior to separation, revealed a right S1 nerve compression due to a L5/S1 disc herniation.  Electromyelogram, performed to measure the functional condition of the nerves of the lower extremities, revealed no abnormal activity.  Neurosurgical consultation, 7 months prior to separation, diagnosed lumbar radiculopathy, recommending that, even with surgery, the CI would not likely qualify for continued active duty.  Permanent profile (L3) on 11 September 2006, listing one diagnosis as “Lumbar HNP with radiculopathy,” outlined numerous restrictions as noted above.  At the MEB examination, the CI reported numbness and tingling.  The commander’s memorandum to the PEB noted that the CI “visibly struggles when walking or moving,” but did not provide specific observations to conclude if this impairment was due to the radiculopathy.  The MEB examination documented a decreased sensation in the S1 dermatome and a decreased right Achilles reflex, with an L3 profile, adding that the neurosurgeon had concluded that the CI was not qualified for continued service, listing “lumbar radiculopathy” as a “disqualifying defect” on the DD Form 2808.  The MEB forwarded the diagnosis of “low back pain with radiculopathy,” but the PEB addressed only the LBP component.  The VA C&P examination, a month after separation, noted a positive straight leg raise test in the right leg (indicative of radiculopathy), (4/5) “weakness in right leg,” and diagnosed “intervertebral disc syndrome” with “motor and sensory deficit in right lower extremity.”  After due deliberation, the Board agreed that (1) the preponderance of the evidence with regard to the functional impairment of the right leg weakness secondary to S1 radiculopathy, caused by the L5/S1 herniated disc, and recommended by a military neurosurgeon as a “disqualifying defect,” favors its recommendation as a separately unfitting diagnosis, and therefore that (2) this condition does warrant an additional disability rating.

The Board directs attention to its rating recommendation based on the above evidence.  Sciatic neuropathy may affect multiple dermatomes and multiple muscle groups, as evidenced in the VASRD, which describes a complete paralysis as one which involves many muscle groups below the knee.  This case involves only a sensory and incomplete motor radiculopathy involving a single nerve root; namely, right S1.  Without specifying criteria for its choice of rating of “incomplete paralysis which is moderate,” the VARD (3 months after separation) assigned a rating for a moderate right S1 radiculopathy, as incomplete paralysis, at 20% under VASRD code 8520.  After due deliberation, the Board agreed that this condition is appropriately coded 8520, and meets the VASRD §4.123 (neuritis, peripheral) criteria for a 10% rating.

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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the S1 radiculopathy, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 8520 IAW VASRD §4.71a and §4.123.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain Condition	5243	20%	
Right S1 Radiculopathy, Mild	8520	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

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 XXXXXXXXXXXXXXX, AR20150003723 (PD201300200)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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 the memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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						     
CF: 
(  ) DoD PDBR
(  ) DVA