RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01324
BRANCH OF SERVICE:  Army	BOARD DATE:  20150521
SEPARATION DATE:  20040610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Network Switching System) medically separated for chronic low back pain (LBP) with left leg pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain with chronic left lower extremity radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded nine other conditions (pelvic pain, symptomatic pulmonary embolism, lumbar spine degenerative disk and degenerative joint disease, mild osteoarthritis of bilateral knees, bilateral deQuervain tenosynovitis, retropatellar pain syndrome, abnormal thyroid stimulating hormone, mild hyperandrogenism, and panic disorder) for PEB adjudication.  The Informal PEB found the “chronic low back pain and left leg pain” unfitting, and rated it 10%. The remaining nine conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals at that time and was medically separated.  

CI CONTENTION:  The CI contends that all of her medical problems occurred while in the military and that she should have received medical retirement.  Her complete submission is a Exhibit A.  

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:  

IPEB – Dated 20040420	VA* - (13 Days. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain and Left Leg Pain	5243-5299-5237	10%	Residuals, S/P Laminectomy, DDD with Left Leg Radiculopathy	5243	40%	20040528	
Pelvic Pain	Not Unfitting	Residuals of Surgery Cervical Dysplasia	7599-7517	40%	20040528	
		Residuals of Hysterectomy	7618	30%	20040528	
Retropatellar Pain Syndrome	Not Unfitting	Right Knee, Retropatellar Pain Syndrome	5024-5260	10%	20040528	
		Left, Retropatellar Pain Syndrome	5024-5260	10%	20040528	
Mild Osteoarthritis of Bilateral Knees	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 6 (Not In Scope)	Other x 14 	
RATING:  10%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20041102 (most proximate to date of separation (DOS))  

ANALYSIS SUMMARY: 

Chronic LBP, and left leg pain.  In 1997, this CI noted onset of LBP.  There was no specific trauma or injury associated with the onset of pain.  In October 2002, she began to develop left lower extremity (LLE) radiculopathy.  In June 2003, she had surgery on her lower back.  After surgery, she was treated with physical therapy (PT), transcutaneous electrical nerve stimulation (TENS), and massage.  In spite of all treatment efforts, her pain symptoms persisted and an MEB was initiated.  On 16 December 2003, the CI was evaluated by Neurosurgery.  She reported that her LLE pain was made worse by standing or by sitting with feet extended.  On physical examination (PE), she appeared in no acute distress.  Her surgical incision was well healed.  Straight leg raise was negative and neurological exam (motor and sensory) was normal.  On 23 December 2003, She was evaluated by Rheumatology.  She reported difficulty getting in and out of bed, and difficulty picking something up off the floor.  On PE, she was in no acute distress.  Her lumbar lordosis (curvature of lower back) was normal.  Back range-of-motion (ROM) was measured and is summarized in the chart below.  On 24 December 2003, she was evaluated by Orthopedics.  She was in no acute distress and she walked with a non-antalgic gait.  The MEB narrative summary (NARSUM) was dictated on 6 April 2004.  In the NARSUM, the diagnosis for her back and left leg was: LBP, with chronic left lower extremity radicular symptoms.

The CI was medically separated from service on 10 June 2004.  On 28 May 2004, 13 days before separation, she had a VA Compensation and Pension (C&P) exam.  The CI reported that her radicular symptoms were present daily.  She described her back pain as “aching and spasms.”  About once a month, she would have a flare-up of back pain, in addition to the baseline back pain.  Her walking was limited to about two blocks.  On PE, her gait was normal.  PE of the back revealed marked tenderness to palpation in the paraspinous musculature, but no spasms.  Back ROM was measured, and is summarized in the chart below.  Repetitive motion caused increased pain, but did not decrease the ROM.  Neurological exam (motor and sensory) was normal.  The ROM evaluations in evidence which the Board weighed in arriving at its recommendation, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~8 mos. Pre-Sep
(20031016)	MEB ~6 mos. Pre-Sep
(20031223)	VA C&P ~13 days Pre-Sep
(20040528)	
Flexion (90 Normal)	Active ROM in standing position: within normal limits (WNL), but with pain on flexion 	80	30	
Extension (30)		20	10	
R Lat Flexion (30)		45	20	
L Lat Flexion (30)		45	20	
R Rotation (30)		(not recorded)	20	
L Rotation (30)		(not recorded)	20	
Combined (240)	(cannot calculate)	(cannot calculate)	120	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the CI’s LBP and the LLE pain into a single unfitting condition: “Chronic LBP and left leg pain.”  The unfitting condition was coded 5243-5299-5237 and rated at 10%.  The Board evaluated whether or not it was appropriate for the two pain problems to be “bundled” together.  The Board determined if the PEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted, it must satisfy the requirement that each “unbundled” condition was separately unfitting.  Based on the evidence, the Board determined (by majority decision) that it was not appropriate to bundle the two pain problems together.  After due deliberation, the Board determined that the evidence supports a conclusion, that the chronic LBP, and the left leg pain, separately, would have rendered the CI unable to perform her required military duties.  Accordingly, the Board recommends a separate Service disability rating for each of the pain problems.  

Board noted the disparity in the ROM exams described above.  At the May 2004 C&P exam, her thoracolumbar forward flexion was only 30 degrees.  However, the Board found some discrepancies and inconsistencies with that May 2004 C&P exam, which caused the Board to question its validity and probative value.  For example, a limitation of thoracolumbar forward flexion to 30 degrees would almost certainly present difficulties with certain activities such as dressing oneself, sitting in a chair, riding in a car, or climbing onto the examination table.  The record did not indicate that the CI had any of these difficulties.  The examiner wrote: “Pain occurs at maximum range of motion testing.”  Therefore, the Board determined that it was more likely than not, that the examiner had recorded the degree at which pain occurred, rather than the actual ROM.  In the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, it directs that ROM should be measured with or without symptoms such as pain.  The Board determined that the inconsistencies in the May 2007 C&P exam caused diminution in its validity and probative value. 

At the December 2003 MEB exam, forward flexion was 80 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted when thoracolumbar flexion is greater than 60 degrees, but not greater than 85 degrees.  After a thorough review of the evidence, the Board determined that a separation disability rating of 10% was appropriate for the LBP condition.  The Board tried to find a path to a higher rating. There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other diagnostic codes which could be applied to the CI’s condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the chronic LBP.  It is appropriately coded 5242, and IAW VASRD §4.71a, met criteria for the 10% rating level due to forward flexion greater than 60 degrees, but not greater than 85 degrees.
The Board then considered the unfitting left leg pain.  On multiple occasions, the neurological exam of her LLE was normal, with normal muscle strength, normal sensation, and normal deep tendon reflexes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends (by majority decision) a disability rating of 10% for the unfitting left leg pain.  It is appropriately coded 8720 (Sciatic neuralgia), and IAW VASRD §4.124a, meets criteria for the 10% rating level (mild). 

Other PEB conditions.  Nine conditions were adjudicated by the PEB as not unfitting and therefore not ratable.  These conditions were: Pelvic pain, status post (s/p) pulmonary embolism, Lumbar spine degenerative disc and degenerative joint disease, mild osteoarthritis (OA) of both knees, mild bilateral de Quervain’s tenosynovitis, retropatellar pain syndrome, abnormal thyroid stimulating hormone (TSH), mild hyperandrogenism, and panic disorder.  The Board determined that the third condition on this list (lumbar spine degenerative disc and degenerative joint disease) was most likely an administrative redundancy.  This condition was addressed above, since it was a contributing factor to the CI’s unfitting LBP and LLE pain.

The Board’s main charge with respect to the eight other listed conditions is to assess the appropriateness of the PEB’s fitness adjudication.  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.  These conditions were reviewed by the action officer and considered by the Board.  The Board found insufficient evidence in the record that any of these eight conditions significantly interfered with satisfactory duty performance.  After due deliberation, and 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 eight conditions.  Therefore, 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 chronic LBP condition, the Board recommends a disability rating of 10%, coded 5242, IAW VASRD §4.71a.  In the matter of the chronic left leg pain condition, the Board recommends (by majority decision) a disability rating of 10%, coded 8720, IAW VASRD §4.124a.  The single dissenting voter did not elect to submit a minority opinion.  In the matter of the Lumbar spine degenerative disc and degenerative joint disease, the Board unanimously recommends that it be considered a contributing factor to the unfitting LBP and LLE pain, and, IAW VASRD §4.14 (Avoidance of pyramiding), does not constitute a separately unfitting condition for disability rating purposes.  In the matter of the pelvic pain, s/p pulmonary embolism, mild OA of both knees, mild bilateral de Quervain’s tenosynovitis, retropatellar pain syndrome, abnormal TSH, panic disorder, and mild hyperandrogenism, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic low back pain, due to lumbar degenerative disc disease	5242	10%	
Chronic left leg pain, due to sciatic neuralgia	8720	10%	
COMBINED	20%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130911, 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 XXXXXXXXXXXXXXXXXXXX, AR20150015863 (PD201301324)

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