RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300793
BRANCH OF SERVICE:  Army	BOARD DATE:  20140214
Separation Date:  20070307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPT/O-3 (19A/Armor Officer) medically separated for low back pain (LBP).  He noticed increasing back pain while deployed to Iraq in 2005 which became increasingly severe after his return.  The increased severity included numbness in his right leg and the CI underwent surgery in mid-2006.  Surgery led to significant but temporary improvement and later treatment included electronic stimulation and steroid injections.  Despite this treatment the low back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “LBP with radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated “chronic low back pain” 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 Physical Evaluation Board (PEB) found me unfit for service for chronic low back pain with atraumatic onset and motion limited by pain.  The PEB lists VA code 5237 from the Veterans Administration Schedule for Rating Disabilities (VASRD).  The PEB assessed a 10% disability rating for the unfitting condition which appears to be inconsistent with VASRD General Rating Formula for Diseases and lnjuries of the Spine.  The 10% rating assessed by the PEB would be appropriate for forward flexion of the thoracolumbar spine greater the 60 degrees but not greater than 85°.  The physical examination, performed by E-- R--, MD documented in the Narrative Summary (NARSUM) (page 5), states forward flexion to only approximately 15 degrees.  The VASRD prescribes a rating of 40% for forward flexion of the thoracolumbar spine of 30 degrees or less.  The PEB states imaging is normal; however, imaging studies documented in NARSUM on page 3 for 21 Sep 2006 state (post-surgery): MRI of the lumbar spine with and without contrast. Impression: "L5-Sl right paracentral disk protrusion causing moderate spinal canal narrowing at this level and moderate to severe right neural foraminal narrowing at this level."  The PEB did not separately rate radicular pain because the condition is not separately unfitting; however, radicular pain contributes the severity of the unfitting condition and contributes to painful motion and the limitation of forward flexion of the thoracolumbar spine.  The radicular pain contributes to the unfitting condition and should be rated in accordance with AR 635-40, Section 4-19f (6) (b).  The radicular pain should be rate as prescribed in the VASRD.  I request the review board consider: 1) the appropriate application of the VASRD rating for VA code 5237 based on the forward flexion of thoracolumbar spine documented in the NARSUM, 2) the rating of radicular pain as contributing to the unfitting condition in accordance with AR 635-40, Section 4-19f (6) (b), and 3) review all conditions identified but determined not to be unfitting by the PEB (see page 7 of NARSUM).”

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 low back condition is addressed below.  Likewise, the conditions listed as MEB diagnoses 2-7 (see rating comparison chart) 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.

RATING COMPARISON:

Service PEB – Dated 20070119	VA – no VA records*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…	5299-5237	10%		
S1 Radiculopathy…	Not Unfitting		
S1 Sensory Neural Loss…			
Loss of Achilles’ Tendon Reflex…			
Chronic Back Pain	Rated in Condition 1		
Gastro esophageal reflux disease (GERD)	Not Unfitting		
Possibly Mildly Elevated Blood Pressures			
No Additional MEB/PEB Entries		
Combined:  10%	Combined:  unknown %	
*CI did not consent to release VA records for review.

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using VASRD standards, based on ratable severity at the time of separation, and to review fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.  The Board notes the CI did not consent to the release of his VA records for review; this lack of potentially probative VA evidence significantly impacts the Boards usual process for making evidence-based recommendations.  In keeping with standard Board procedure, the Board carefully reviewed the entire file for evidence from the period preceding separation on which to base its recommendation.

Chronic LBP Condition.  The CI had two falls while deployed to Iraq in 2005-2006 and wore individual body armor (IBA) extensively during deployment.  Upon becoming an Executive Officer in August 2005, the CI changed to largely desk-bound duties and his LBP slowly worsened.  The CI was seen in October 2005 (while still deployed) for pain radiating from the lower back to both knees which worsened as the day progressed.  This radicular pain had been present for 4 weeks, with intermittent LBP for a year and a half.  The physical exam was normal, but the examiner diagnosed possible radiculopathy due to deep paraspinous involvement.  The CI continued to experience chronic LBP after his return in February 2006, though a lumbar spine X-ray performed in that month (in the U.S.) was normal.  A physical therapist (PT) in that same month noted abnormal lumbar spine motion, muscle spasms, antalgic gait decreased sensation, but motor exam was normal.  A magnetic resonance imaging (MRI) performed in April 2006 showed a large right paracentral disc herniation at L5-S1 impinging on the S1 nerve root.  A neurosurgery exam in June 2006 noted constant burning, sharp to dull shooting pain radiating to the right hip down to the knee.  Physical exam findings were abnormal; thoracolumbar motion with pain, flexion and extension in standing maneuver during movement.  There were abnormal sensory findings but the motor exam was normal.  The diagnosis was lumbar radiculopathy, herniated disc L5-S1 and lumbago.  The CI underwent a right-sided minimally invasive lumbar microdiscectomy, hemilaminectomy and foraminotomy with medial facetectomy.  Post operatively, the CI continued to report LBP extending to the right hip with sharp shooting pain radiating down the right lower extremity, exacerbated with twisting or bending, as well as flexion with muscle spasms.  A lumbar spine MRI showed a L5-S1 right paracentral disc protrusion casing, moderate spinal canal narrowing, and moderate to severe tight neural foraminal narrowing.  The thoracic spine was normal. The CI was referred to the pain clinic for constant burning pain in the right low back and posterolateral thigh.  Physical exam findings included tenderness to palpation (TTP) of the right side of the lumbar spine, TTP in the iliolumbar region, limited lumbar spine range-of-motion (ROM), pain with flexion and extension and pain with lateral flexion to the right, though motor and sensory exams were normal.  The examiner administered the first epidural steroid injection (ESI) in a series of three injections scheduled for pain resolution.  The CI was given a permanent L3 Profile for LBP and right leg pain with specific restrictions of no IBA, no forced PT and no sit-ups or push-ups.  Approximately 3 weeks after the first ESI, a PT note documented “Lumbosacral spine did not demonstrate full range of motion flex approx. 45 deg., but sits in apparent comfort.  A sitting root test was negative.”  An electromyogram (EMG) on 9 November 2006 indicated no lumbar radiculopathy or entrapment neuropathy.  The commander’s statement noted the medical condition interfered with MOS duty performance.  A second ESI was performed 14 November 2006.  The MEB narrative summary (NARSUM) exam (3 months prior to separation, with findings summarized in chart below) indicated the ESI injections provided a week pain relief; the pain was constant, aggravated by driving, sexual activity or any rapid activity such as running.  There was occasional right leg weakness due to pain, and sleeping required lying on his right side, with hips squared and a pillow between his legs to decrease pain.  The examiner considered long term pain relief unlikely and the lasting effect of ESI unclear.  The examiner specifically documented Achilles reflexes were 2+ (normal) bilaterally.  The CI underwent a third ESI on 5 December 2006.  The CI did not consent to the release of his VA records; the two ROM evaluations in evidence (with documentation of additional ratable criteria) which the Board considered for its rating recommendation, are summarized in the chart below.

Thoracolumbar ROM(Degrees)	PT 4.0 Mo. Pre-Sep	NARSUM 3.3 Mo. Pre-Sep	
Flexion (90 Normal)	45	15	
Extension (30)	25	5	
R Lat Flexion (30)	30	“full”	
L Lat Flexion (30)	30	“full”	
R Rotation (30)	30	-	
L Rotation (30)	30	-	
Combined (240)	190	-	
Comment	Normal gait; decreased sensation lateral right foot; No muscle spasms; Normal ankle reflex but less brisk on left	Normal gait; Pos. painful motion; no evidence muscle atrophy; Normal heel/toe walk; Right foot sensation minimally decreased; Normal foot strength & reflexes bilaterally; no muscle atrophy	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code 5299-5237, lumbosacral strain and rated the LBP condition 10% for “tenderness.”  The general rating formula for diseases and injuries of the spine includes 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 VASRD rating formula is primarily based on ROM measurements for assigning a rating percentage, along with the passage “…muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour…” for application of the 10% rating.  Review of all documents in evidence revealed two ROM based physical examinations (one from PT and the other from the NARSUM) performed within 3 weeks of each other, approximately 4 months prior to separation.  The PT exam 3 weeks prior to the NARSUM documents a lumbar spine flexion of 45 degrees, while the NARSUM exam documented a lumbar spine flexion of 15 degrees.  Both exams documented pain limited lumbar spine motion.  There is a disparity between these examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  The NARSUM exam was 3 weeks closer to the CI’s date of separation but was not as comprehensive as the PT exam.  The PT exam contained ROM measurements for all axes of thoracolumbar motion, while the NARSUM exam did not.  The PT exam ROM measurements consisted of the average of three different measurements in each plane of motion, the NARSUM did not.  An earlier PT note (6 weeks prior to the NARSUM) documented lumbosacral spine flexion of “…approximately 45 deg.”  There were no additional examinations with ROM measurements dated after the NARSUM.  Due to its more detailed information and corroborating evidence, Board deliberations determined the PT exam to be more probative than the NARSUM exam.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the associated sciatic radiculopathy.  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 a radiculopathy is subsumed under the general spine rating as noted above and IAW §4.71a.  The sensory component in this case has no functional implication, and no motor weakness or muscle atrophy was documented.  An EMG performed demonstrated no evidence of lumbar radiculopathy or entrapment neuropathy.  There is no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy, so the Board cannot support a recommendation of “unfitting” for an additional disability rating on this basis.  The Board considered the criteria for a 40% rating forward flexion of the thoracolumbar spine 30 degrees or less as documented in the NARSUM and the 20% rating for forward flexion of the lumber spine of 45 degrees as documented in the more probative PT exam.  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.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were S1 radiculopathy, S1 sensory neural loss, loss of Achilles tendon reflex, GERD and elevated blood pressures.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The contended S1 radiculopathy, S1 sensory neural loss, loss of Achilles tendon reflex conditions were discussed in the chronic LBP section above and were not found to be separately unfitting.  Neither the GERD condition nor the elevated blood pressure condition was profiled.  They were not implicated in the commander’s statement and were not judged to fail retention standards.  Both were reviewed by the action officer and considered by the Board.  There was no indication from the record that either of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the GERD and elevated blood pressures conditions, so no additional disability ratings can be recommended.

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 chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended S1 radiculopathy, S1 sensory neural loss, loss of Achilles tendon reflex, GERD and elevated blood pressures conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-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 XXXXXXXXXXXXXXXXXX, AR20140009377 (PD201300793)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA