RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01781
BRANCH OF SERVICE:  Army	BOARD DATE:  20141030
SEPARATION DATE:  20041009

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (92Y/Unit Supply Sergeant) medically separated for a back condition.  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 back condition, characterized as “moderate, frequent, chronic low back pain (LBP) and radiculopathy of the right leg” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic 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:  “Because I was misdiagonsd [sic] by the military and had to have back surgery later on.  I couldn’t even do my job working in a office as S4 NCOIC I was put on a Profile to only work four hours a day after my back surgery.  I repeatly went to get help at the TMC by nothing but being put on quarter/bed rest.  I didn’t know that I could be military retired for medical reasons.”  

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 back 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 20040630	VA - (2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Residuals, L5-S1 Spinal Fusion w/DDD	5242	40%	20040817	
Other x 0  (Not in Scope)	Other x 7 	20040817	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20041027 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  Secondary to a remote vehicle accident in 1995 and 1998, the CI developed persistent LBP; diagnosed as a lumbar strain and treated with physical therapy.  Over time, her symptoms increased with radicular pain into her right leg.  A magnetic resonance image revealed disc disease with narrowing of nerve space at the lumbosacral spine.  At that time her physical examination (PE) there was noted no abnormal gait, no loss of range-of-motion (ROM) or neurologic deficit.  Her diagnosis was lumbar radiculopathy.  All non-surgical attempts for pain relief failed and she underwent a lumbosacral fusion on 30 October 2003.  Post-operatively, there was a single rehabilitation note dated 29 June 2004 (3 months prior to separation) that reflected decreased sensation with normal strength in bilateral lower extremities in the L4-S1 nerve distribution.  The measured ROM evidence probative to separation is summarized in the chart below.
     
Thoracolumbar ROM
(Degrees)	
MEB ~5 Mo. Pre-Sep
(20040513) 	VA C&P ~2 Mo. Pre-Sep
(20040817) 	
Flexion (90 Normal)	35	30	
Extension (30)	5	15	
R Lat Flexion (30)	10	15	
L Lat Flexion (30)	10	15	
R Rotation (30)	20	10	
L Rotation (30)	15	10	
Combined (240)	95	95	
Comment	painful motion; antalgic gait	normal gait; spasm; painful motion; + SLR 	
§4.71a Rating	20%	40%	

At the narrative summary examination (May 2004; 5 months prior to separation), the CI’s chief complaint was “my back hurts.”  She reported continued LBP with aching and tingling in her right leg.  The PE revealed an antalgic gait as well as tenderness to her lumbosacral spine.  Her right strait leg raise was positive (indicating a possible radicular component) and there was decreased sensation on the back of her right leg.  Her diagnosis was “moderate, frequent, chronic LBP and radiculopathy of the right leg, status-post fusion of the lumbosacral spine due to degenerative disc disease.”  Her permanent profile implicated chronic LBP and the commander’s statement clearly indicated that her physical limitations prevented her from performing her military duties.  Her prognosis was described as “good.”  At the VA Compensation and Pension examination (August 2004; 2 months prior to separation), she endorsed a constant crushing, sharp LBP which traveled to her right leg and foot.  She reported symptoms being aggravated by physical activity and relieved with medication.  She endorsed that “she can function with medication.”  Although not documented in the case file, she reported “incapacitating episodes as often as four times per month, which lasts for six days.”  The VA PE revealed a normal gait with lumbar tenderness and spasm present.  The right strait leg raise was positive and radicular pain was elicited with movement of the right leg.  There was severe limited painful ROM present.  Her diagnosis was L5-S1 spinal fusion with DDD L4-L5 and L5-S1 with a right lower extremity radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar codes of 5241 (spinal fusion) and 5242 (degenerative arthritis) respectively; citing painful limited motion by the PEB and limited ROM by the VA.  Board members first agreed that sufficient evidence of painful ROM was present to justify the rating of 10%; however, the documented ROM at the MEB examination clearly rates at a 20% rating.  Board members then discussed the degree of probative value between the two, prior to separation examinations (having significant implications for the Board's rating recommendation) and agreed that it was the totality of both examinations that addressed proper probative value distribution in this case.  The single entity of a 5 degree variance in ROM (flexion) was the primary issue in this case.  Members deliberated over 20% or 30% impairment ratings associated with each exam’s 35 vs 30 degrees of flexion, respectively.  Additional points of discussion centered on the “exactness” of the combined ROM value which supported exam consistency, and the unexpected finding of a “normal gait” by the VA despite the presence of “severe” pain and “radicular” symptoms.  Upon completion of an extensive deliberation, considering the totality of evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the LBP condition.  

The Board additionally considered if the symptomatic right lower extremity radiculopathy warranted additional disability rating; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that the radiculopathy condition could not be recommended for additional disability 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 low back condition, the Board unanimously recommends a disability rating of 20% coded 5241 IAW VASRD §4.71a.  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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130830, 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, AR20150006980 (PD201301781)

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