RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00218
BRANCH OF SERVICE:  Army	BOARD DATE:  20140508
Separation Date:  20050307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for low back pain (LBP) and right lower extremity (RLE) radiculopathy.  He developed shin splints in 2003 and was put on a temporary profile, but was allowed to deploy with his unit to Iraq in 2004.  During deployment he continued to have pain in his right leg even with the profile restrictions, and started to get a burning pain in that extremity, along with some minor LBP.  This pain continued to bother the CI to the point where he was evacuated in April 2004 to Germany and then to CONUS, where the suspected stress fracture continued to be treated conservatively.  In September 2004, a different etiology was suspected and radiographs indicated a low back problem.  Despite conservative treatment and steroid injections, the back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or satisfy physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lumbar spine herniated nucleus pulposus…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated “chronic LBP...” and “right lower extremity (RLE) sensory radiculopathy…” as unfitting, both rated 10%, with likely application of specific rating guidelines (AR 635-40).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The rating from the VA for my unfit condition does not match the rating from the PEB.  I think the rating from the PEB is too low.  Also, please note that my back and L5-S1 radiculopathy were incurred during combat operations in Iraq.  Evidence of this is in the medical records from Iraq, where I complain of leg pain and that my left feels like it is on fire.  It was not until I was medevac’d and returned to F. Carson that it was discovered that the pain and burning sensation in my leg was caused by L5-S1 herniated disc and L5-S1 radiculopathy.”

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 ratings for the unfitting LBP and radiculopathy conditions are 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 (BCMR).  

IAW 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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.  Whether unfitting conditions were incurred during a period of war or combat is not in the scope of this board; it may be addressed via the service BCMR as desired.

RATING COMPARISON:

Service PEB – Dated 20050131	VA - (4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Herniated Disk and DDD, L5-S1	5243	20%	20050715	
RLE Sensory Radiculopathy	5243-8720	10%	L5-S1 Radiculopathy, RLE	8520	10%		
Residual Right Shin Tenderness s/p Stress Fracture	Not Unfitting	Right Lower Extremity Shin Splint	5262-5022	10%		
Correctable Vision		No VA Rating	
No Additional MEB/PEB Entries	Other x9	20050715	
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20060118, most proximate to date of separation (DOS)

ANALYSIS SUMMARY:

Chronic LBP Condition.  The chronic LPB condition and the RLE sensory radiculopathy will be discussed together as they are closely linked conditions.  In April 2004 while deployed, the CI developed LBP associated with right leg pain and occasional numbness of his right foot.  He was medically evacuated CONUS due to worsening pain initially thought due to a right tibial stress fracture.  The LBP was 8 out of 10 (10 being the worst) with tenderness to palpation in the right lumbar spine.  The lumbosacral spine X-ray showed intervertebral disc degeneration at L4-5 with congenital “sacralization.”  A magnetic resonance imagining study showed degenerative disc changes of the L5-S1 disc with a right herniated disc that caused mild narrowing on the right.  An electromyogram (EMG) demonstrated an abnormality in the right S1 nerve root.  The CI was referred to physical therapy (PT) for S1 radiculopathy with physical exam findings of antalgic gait, L5-S1 pain, and positive straight leg raise on the right.  He was also referred to back class for treatment.  The pain management specialist noted physical exam findings of right positive straight leg raising, pain and numbness in the L5-S1 dermatome, tenderness to the right of L5-S1 with flexion and tenderness at the right sciatic notch.  The specialist planned for a right L5 and right S1 transforaminal epidural steroid injection (ESI).  An emergency room visit documented increased LBP, an inability to ambulate with tenderness to palpation L4-L5 and positive right straight leg raise.  The orthopedist documented that the ESI only relieved the pain by 35-40% and there was a poor response to PT.  The physical exam findings were flexion limited to 45 degrees with bending to knees and positive right straight leg raise at 30 degrees.  The orthopedist advised that if there was surgical intervention for the herniated L5-S1 disc, the results would be 90-95% good to excellent results.  The commander’s statement indicated that although the CI was compliant with all of his treatment, he could not handle the weight of the gear required to wear while deployed and his medical condition interfered with duty performance.  The CI was given a permanent L3 Profile for leg and back pain with additional restrictions related to this condition.  The orthopedic narrative summary (NARSUM) exam, completed approximately 2 months prior to separation, noted that the CI had chronic LBP specifically with forward bending and pain in the right leg and calf despite two ESI’s and PT.  The physical exam findings are summarized in the chart below.  The MEB NARSUM exam accomplished approximately a month prior to separation documented chronic LBP and worsened RLE burning pain and occasional RLE transient weakness.  The LBP was aggravated by repeated bending, twisting, heavy lifting, impact activities, standing more than an hour, sitting more than three hours or walking more than 30 minutes.  The physical exam findings are summarized in the chart below.  The VA Compensation and Pension (C&P) exam performed approximately 4 months after separation noted constant LBP which radiated down the right leg with associated numbness and tingling in the dorsal aspect of the right foot, toes and lateral aspect of the leg.  The LBP was achy at rest, sharp with movement and would flare at; least once a month and could last one to 2 weeks at a time.  He had functional impairments of an inability to put on shoes during a flare, an inability to drive more than 2 hours due to pain and stiffness.  The physical exam findings are also summarized in the following chart.  There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation:

Thoracolumbar ROM (Degrees)	Ortho Consult ~2 mos Pre-Sep	NARSUM ~1.5 mos. Pre-Sep	VA C&P ~4.5 mos. Post-Sep	
Flexion (90 Normal)	No ROM measurements	40	50	
Combined (240)		185	160	
Comment	Forward flexion extremely limited; Pos. Straight Leg Raise (SLR) on right; minimal to no tenderness to palpation sacroiliac region; Normal strength; decreased sensation in right lateral leg & bottom of right foot	Pos. Painful motion at 30 deg. & SLR on right; Decreased sensation right outer foot; Pos. tenderness to palpation L-S spine; Normal reflexes & strength	Pos. Painful motion at 20 deg. with antalgic gait; Pos. tenderness to palpation LS spine & SLR; Decreased sensation right leg; No muscle atrophy; Pos. Deluca criteria	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5243 (intervertebral disc syndrome) and rated at 10%.  The VA also coded the herniated disk and L5-S1 degenerative disc disease condition as 5243 and 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 performance.  There is ample documentation in the service treatment record (STR) that the CI had limited spine flexion.  An orthopedist exam in October 2004 documented that the spinal flexion was limited to 45 degrees.  An orthopedic consultant documented that “forward flexion was extremely limited; can only forward flex with knees extended to touching his suprapatellar region.”  However, this exam did not contain any ROM measurements.  The 1-month pre-separation NARSUM documented a flexion of 40 degrees with pain at 30 degrees while the 4-month post-separation C&P exam documented a thoracolumbar ROM of 50 degrees with pain at 20 degrees.  Both exams support a 20% disability rating for the CI’s LBP condition.  The second MEB NARSUM which was proximate to separation met the 40% rating for “forward flexion of the thoracolumbar spine 30 degrees or less.”  There was no evidence of incapacitating episodes due to LBP that would allow for rating based on incapacitating episodes.  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 chronic LBP condition.

In reviewing the CI’s right leg sensory radiculopathy the Board also considered the above evidence.  The PEB analogously coded the RLE sensory radiculopathy condition as 5243-8720 (sciatic nerve neuralgia) and rated it 10% consistent with “mild.”  The VA coded the RLE L5-S1 radiculopathy as 8520 (incomplete paralysis of the sciatic nerve) and rated it 10% for “mild.”  There was ample documentation throughout the STR that the CI had RLE numbness, tingling and burning pain.  An EMG demonstrated a right S1 nerve root lesion.  Both MEB exams documented normal lower extremity motor function.  Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the mild vs. moderate distinction.  A rigid assessment could require 3/5 or worse strength testing to merit the moderate rating.  More liberal rating applies any objective motor impairment or atrophy as a threshold for the moderate designation.  By precedent, the Board threshold for a “moderate” peripheral nerve rating requires some functionally significant motor and/or sensory impairment.  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 adjudication for the RLE sensory radiculopathy 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.  As discussed above, likely PEB reliance on service specific guidelines for rating the chronic LBP was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the RLE sensory radiculopathy condition and IAW VASRD §4.124a, 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 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 prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5243	20%	
Right Lower Extremity Sensory Radiculopathy	5243-8720	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130429, 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, AR20140020833 (PD201300218)

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 this 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