RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01918
BRANCH OF SERVICE:  Army	BOARD DATE:  20141007
SEPARATION DATE:  20051122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (89D/Explosive Ordnance Disposal Team Leader/Ammunition Specialist) medically separated for right leg radiculopathy.  The right leg condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Low back pain (LBP) with a herniated disc at S1-2 which is otherwise referred to as L6-S1 and an S1 radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions that met retention standards.  The Informal PEB adjudicated “right lower extremity radiculopathy” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The chronic LBP and the two medically acceptable conditions were determined to be not unfitting, not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Grossly different findings from non-military doctors.”

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 right leg radiculopathy is addressed below.  The LBP, bilateral intermittent knee pain and smoking conditions, which were determined to be not unfitting by the PEB, are likewise 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 20050928	VA - (1.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
RLE Radiculopathy	
8720
	10%	Right Leg Sensory, L5-S1	8520	10%	20060106	
Low Back Pain	Not Unfitting	Low Back Sprain w/DDD	5243	20%	20060106	
Bilateral Knee Pain	Not Unfitting	Bilateral Knee Strain		0%	20060106	
Smoking	Not Unfitting	No VA Entry	
Other x 1 (Not in Scope)	Other x 2	20060106	
Rating:  10%	Combined:  40%*	
Derived from VA Rating Decision (VARD) dated 20060411 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  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 the PEB rating determinations compared to VASRD standards, based on ratable severity at the time of separation, and to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.  The Board acknowledges the CI’s implied contention for the ratings of his back, bilateral knee and smoking conditions (which were determined to be not unfitting by the PEB) and emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.

Right Lower Extremity Radiculopathy.  Orthopedic consultation to the MEB performed on 2 August 2005, recorded the CI had significant S1 radiculopathy on electromyogram (EMG) and nerve conduction studies.  His LBP with right greater than left leg pain began in 2001.  The CI described his back pain as severe and constant with radiation to the groin into the right leg and down the calf.  The CI stated his back pain without narcotic medication was 8/10.  He had some radicular pain to the left leg considered not as great as the right.  Physical examination noted the CI was able to heel and toe walk without difficulty, deep tendon reflexes and muscle strength were normal bilaterally.  Straight leg raise (SLR) was positive.  There was decreased sensation recorded in the left leg and S1 dermatome.  The diagnoses included chronic S1 radiculopathy, chronic lower back pain and herniated disc at S1.  The narrative summary (NARSUM) performed on 8 September 2005, noted the CI had a positive EMG study for S1 radiculopathy on the right greater than on the left.  The CI later developed numbness in his left foot October 2001 that worsened with activity.  He denied any weakness in his lower extremities.  The diagnosis of intermittent bilateral knee pain was assessed.  In regards to the bilateral knee pain diagnosis, the examiner stated the CI reported “his symptoms have never been severe enough to pursue orthopedic referral.  His symptoms have decreased with his decreased activity level due to his profile.”  No other diagnoses related to the CI’s back or the radiculopathy were recorded.  No additional evaluations were among the available treatment records.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition of right lower extremity radiculopathy at 10%, rated as sciatic neuralgia secondary to S1 impingement from discogenic disease, coded 8720 (neuralgia).  The VA rated the condition of right leg sensory impairment, 10%, coded 8520 (sciatic nerve, incomplete, mild paralysis).  The higher rating of 20% under either code requires the demonstration of moderate degree of impairment.  VASRD §4.124a defines the term “incomplete paralysis” associated with nerve injuries, as “a degree of lost or impaired function substantially less than the typical picture for complete paralysis” and noted “when the involvement is wholly sensory, the rating should be for mild, or at most, moderate.”  The Board noted there were no recorded episodes of incapacitation and no evidence of lower extremity weakness or atrophy.  All Board members agreed, the evidence supported the 10% rating and there was insufficient evidence to support a higher rating.  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 right lower extremity radiculopathy condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of LBP, bilateral knee pain and smoking were not unfitting.  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 Board first considered the LBP condition.  The orthopedic MEB consultation recorded back pain had a sudden onset during fitness testing.  He had three epidural steroid injections that provided temporary relief.  He was deemed not a good surgical candidate.  His back pain interfered with his ability to run, jump, perform sit-ups and lift objects greater than 20 pounds.  Physical examination of lumbar spine recorded a range-of-motion (ROM) flexion to 60 degrees (with hands 20 inches from the floor) and extension of 10.  September 2003 magnetic resonance imaging (MRI) demonstrated L5-S1 disk protrusion.  Repeat MRI performed on 21 October 2004 showed “severe right and moderate left lateral recess stenosis at L5-S1 level in combination with pressure effect upon the right S1 nerve root within the lateral recess.”  Other findings were multi-level moderate bilateral facet arthropathy and moderate central canal stenosis at L5-S1.  A third MRI performed on 21 March 2005 noted his condition was unchanged compared to the October 2004 lumbar MRI.  The NARSUM noted the CI was treated conservatively with medication and was able to continue working in his MOS, although he had mild daily pain.  He was able to deploy in 2001.  The CI deployed again November 2002 and was on a temporary profile for his back after that deployment.  His back pain worsened and led to the 2003 MRI noted above.  The NARSUM included the physical examination performed a month prior at the MEB Compensation and Pension.  That examination recorded positive SLR test bilaterally, no tenderness to palpation along the spine and no palpable spasm.  ROM recorded forward flexion of 71-72 degrees with pain and extension of 41-45 degrees with pain.  Sensory examination was not recorded.  Treatment records were not available; however, the NARSUM noted the CI underwent consultations with spine specialist, pain specialist and physical therapy.  The commander statement indicated CI could not perform simple exercises.  Walking short distances resulted in numbness in the toes of his left foot.  His MOS required the ability to handle tasks of climbing several feet while carrying heavy loads, frequent lifting of 95 pounds and carry 100 meters, dig, lift, and shovel 25 pounds of dirt, while bending, stooping, or kneeling.  The commander’s statement focused on CI’s back condition.  The CI had an L3 profile that recorded a back condition only and restricted all physical activities except walking at own pace and distance.

The Board, after careful deliberation, concluded the preponderance of evidence supported that the low back pain condition was separately unfitting and compensable.  The Board next considered the rating recommendation based on the above evidence.  The VA rated the condition at 20% coded 5243 (intervertebral disc) for limitation in ROM.  The Board considered the ratings under codes 5235-5243 and agreed code 5243 most appropriately reflected the CI’s condition.  The 20% rating requires forward flexion of thoracolumbar spine between 30 and 60 degrees or combined ROM not greater than 120 degrees.  The Board reviewed the ROMs from the NARSUM and the MEB consultation and noted the 60 degree flexion recorded at the MEB, approximately 3 1/2 months prior to separation, reflected an estimated measurement of 60 degrees (20 inches from the floor).  The ROM recorded at the NARSUM (MEB health and physical) on three measurements, noted flexion of 71, 72 and 71.  The VA recorded ROM of 60 degrees, approximately 45 days after separation with a combined ROM of 160 degrees.  The Board considered the VA examination was proximal to the date of separation and therefore, had the greatest probative value.  All Board members agreed the ROM forward flexion met the 20% rating criteria.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of LBP favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5243 and meets the VASRD §4.71a criteria for a 20% rating.

The Board next considered the condition of bilateral knee pain.  This condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The bilateral knee pain condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the condition 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 bilateral knee pain condition and so no additional disability rating is recommended.  The Board considered the condition of smoking and noted the absence of associated health conditions and performance based evidence that the condition significantly interfered with satisfactory duty performance.  Board members concluded there was insufficient cause to recommend a change in the PEB fitness determination and, therefore, no additional disability rating is 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 right lower extremity radiculopathy condition and IAW VASRD §4.124a the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral knee pain condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended low back pain condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 5243 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131025, 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 XXXXXXXXXXXXXXXXX, AR20150003247 (PD201301918)

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