RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXX	CASE:  PD-2013-01174
BRANCH OF SERVICE:  Army	BOARD DATE:  20150114
SEPARATION DATE:  20050823

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Cannon Crewmember) medically separated for chronic low back pain (LBP).  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 condition, characterized as “chronic low back pain and left lower extremity (LLE) radiculopathy secondary to herniated nucleus pulposus at the L5-S1 level,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (hypertension) for PEB adjudication.  The Informal PEB adjudicated his back pain as unfitting and rated it at 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The hypertension was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The reason my rating should be changed: I continue to experience migraine and severe headaches, lower back pain I also have problem with both legs, which cause prolonged standing, walking, cramps and pain, and tingling sensation.  I experience stomach pain, diarrhea, vomiting, drowsiness, dizziness, fatigue, blurred vision, and light headed when taking prescribe medication.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20050613	VA - (3 Months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Intervertebral Disc Disease L5-S1…	5242	10%	20051114	
			Radiculopathy…Left Lower Extremity	5242-8620	10%	20051114	
Hypertension	Not Unfitting	Hypertension	7101	10%	20051114	
Other x 0 (Not In Scope)	Other x 2	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060208 (most proximate to date of separation [DOS]). 

ANALYSIS SUMMARY:

Back Condition Including Radiculopathy.  The narrative summary (NARSUM) noted that the CI had back surgery in 2002 for an L5-S1 herniated disc.  He had brief improvement, then recurrence and worsening of his low back pain.  A magnetic resonance imaging revealed L4-L5 (the level above prior surgery) disk herniation and degeneration (degenerative disc disease).  Neurosurgery was consulted 6 months prior to separation, and documented a normal gait and motor examination, and recommended no surgical intervention.  At the MEB exam 5 months prior to separation, the CI reported left leg pain radiating to his toes with numbness and tingling in the leg.  The MEB physical exam noted thoracolumbar flexion greater than 90 degrees with some discomfort at the extremes; “decreased ROM secondary to pain.”  The NARSUM, 3 months prior to separation, listed a chief complaint of “chronic low back pain and left lower extremity radiculopathic symptoms” (left leg numbness and tingling).  Electrodiagnostic testing (EMG/NCV) showed chronic mild L5-S1 lumbar radiculopathy on the left.  The NARSUM exam documented thoracolumbar forward flexion of 90 degrees (normal) and combined range-of-motion (ROM) of 235 degrees (240 normal).  There was painful motion without tenderness or spasm.  Gait was normal, as were reflexes.  “The neurologic exam was grossly non-focal.”  Three months prior to separation, he was seen for severe pain and noted to have tenderness, muscle spasm, pain with full ROM, and normal contour of the lumbosacral spine.  No bed rest was prescribed.  EMG/NCV performed 3 months prior to separation, showed chronic mild L5-S1 lumbar radiculopathy on the left.  The commander’s statement attested to the CI’s inability to perform due to chronic lower back and left leg pain.  A month after separation, the CI went to urgent care for an acute worsening of his LBP.  He noted radiation of pain to his left ankle but denied weakness or numbness.  On exam he had full ROM with “moderate tenderness bilaterally” and “muscle tenseness” on the right.  He had normal reflexes at the knee and ankle with symmetric strength of both lower extremities.

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported LBP with incapacitating episodes once per year.  The examiner stated:  “He relates incapacitating episodes as often as 1 times [sic] per year, which lasts for 30 days.  Over the past year he had 0 incidents of incapacitation for a total of 30 days.  The physician who recommended bed rest was Dr. (F.) VAMC Augusta, GA.”  The examiner documented an abnormal gait and LLE weakness (4/5), loss of reflexes on the left, and forward flexion to 85 degrees (90 normal) with combined 210 degrees.  There was no tenderness or muscle spasm.  There was pain on repetitive motion and the examiner indicated ROM was additionally limited by pain without speculating on any added degree of loss of ROM.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% coded 5243 (intervertebral disc syndrome).  The VA rated the back at 10% coded 5242 (degenerative arthritis of the spine).  The Board considered the NARSUM exam as having the greatest probative value for rating at the time of separation as it aligned best with the service treatment record and the after separation urgent care evaluation.  The post-separation VA C&P exam was considered after separation worsening.  
The Board noted the VA examiner’s history of incapacitating physician-prescribed bed-rest by Dr. (F.), but all references to Dr (F.) in the record were greater than 2-years prior to separation and proximate to his surgery.  No exam documented limited ROM sufficient to meet any rating higher than 10% IAW the General Spine Formula.  Therefore, the Board unanimously agreed that the record did not support a rating higher than 10% for the back condition under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IAW VASRD §4.71a).  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 chronic LBP condition.

The Board next considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated left lower leg radiculopathy at separation.  The PEB included a bundled or inferred not unfitting radiculopathy as the disability description and further stated “without clinical motor abnormality (despite mild radiculopathy on electrodiagnostic study).”  The NARSUM stated that the CI underwent multiple epidural steroid injections, was placed on chronic pain modulators, anti-inflammatory drugs and narcotic pain relievers for breakthrough pain.  Physical therapy included a trial of traction and electrical stimulation (TENS) which was not effective in relieving the left leg radicular pain symptoms (sciatica).  The VA C&P exam, performed 3 months after separation, documented that the pain was constant and radiating, sharp and burning, elicited by physical activity, and responsive to medications.  The commander’s statement noted that the CI  “… cannot reasonably performance his duties …, due to chronic lower back and left leg pain,” implying a functional impairment linked to fitness and supports a recommendation for addition of a peripheral nerve rating to the disability.  In the matter of the radiculopathy, the Board agrees that the preponderance of the evidence with regard to the functional impairment of the peripheral neuropathy favors its recommendation as an additionally unfitting condition for disability rating.  The radiculopathy is appropriately coded 5243-8620 and meets the VASRD §4.124a criteria for a disability rating of 10% rating.

Contended Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Medications for hypertension can potentially cause dizziness and blurred vision.  However, the hypertension, including potential contended medication side effects, was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that the hypertension or medication side effects 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 these conditions and so no additional disability ratings are 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the LLE radiculopathy, the Board recommends a disability rating of 10%, coded 5243-8620 IAW VASRD §4.124a.  

In the matter of the contended hypertension condition (including potential medication side effects), the Board unanimously agrees that it cannot recommend it for additional disability rating.  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	5243	10%	
Radiculopathy…Left Lower Extremity	5243-8620	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130820, 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  XXXXXXXXXXXXX, AR20150008226 (PD201301174)

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