RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00026
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20070719

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E-5 (Heavy Construction Equipment Operator) medically separated for low back pain.  The 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).  The “chronic low back pain with bilateral lower extremity symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “L5-S1 fusion with persistent pain, without neurologic deficit…” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  He is unable to work due to the injuries he incurred during deployment to Iraq.  His complete submission is t 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 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 20060628	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Fusion with Persistent Pain, without Neurologic Deficit…	5241	20%	Degenerative Disc Disease, Lumbar Spine, Status Post Laminectomy, Lumbar Spine with Retained Hardware	5242-5241	10%	20070813	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071026 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain Condition.  The earliest note in the service treatment record dated 4 April 2004 indicated the CI had sciatica with right thigh numbness that was treated with ibuprofen (a nonsteroidal anti-inflammatory drug (NSAID)), Flexeril (cyclobenzaprine, a muscle relaxer), and Darvocet N (a combination of propoxyphene, a narcotic and acetaminophen, a pain reliever).  An MRI dated 28 April 2003 showed disk space narrowing with associated endplate degenerative changes of chronic nature in the lower lumbar spine especially at L5-S1.  Three years later an MRI dated 15 May 2006 showed multilevel disc and facet (vertebral joint) disease greatest at L5-S1, where a right lateral disc protrusion and smaller left lateral disc protrusion were present.  Neurological evaluation on 27 June 2006 indicated the CI’s back and right leg pain began in October 2005 and fit the pattern of an S1 radiculopathy without any motor or sensory deficit.  Physical therapy was instituted in July 2006; one session hurt more than it helped.  The CI was given methylprednisolone (an oral steroid) trial for the neuritis.  His back pain improved somewhat, but not the leg pain; and he developed right arm pain from repetitious feeding paper into a shredder.  Follow-up neurological evaluation indicated the CI had two steroid injections in August 2006, the first of which helped for a couple of days and the second one was of no help at all; one session of physical therapy hurt more than it helped.  On 20 September 2006, the CI underwent an L5-S1 right-sided hemilaminectomy and microdiskectomy to relieve the effects of the disc protrusion.  Postoperatively, pain persisted along with numbness of the right buttock and foot.  On 26 January 2007 the CI underwent a L5-S1 decompressive laminectomy and other procedures along with a posterior lumbar interbody fusion.  Postoperatively he had periodic pain in his right leg and was referred to a pain specialist for possible facet injections.  The CI continued Percocet (oxycodone, a narcotic and acetaminophen, a pain reliever) for pain relief and was to resume physical therapy.  By 4 May 2015 he had no tenderness along his back, but had some sensory loss consistent with an S1 distribution and he had diffuse decreased reflexes and no appreciable weakness in the right leg.   X-rays revealed postoperative changes of the lower lumbar spine.  There was no fracture or subluxation and the pedicles and SI joints were normal.

At the MEB examination dated 16 March 2007, the CI reported on DD Form 2807-1 lower back pain after surgery, numbness in the right foot and right leg, and screws in the lower back on the L5 disk.  The MEB physical examiner noted on DD Form 2808 the CI had a decreased ROM of the lumbar spine, tenderness along the surgical site, and positive straight leg raise bilaterally.  A permanent L3 profile was issued in April 2007 with limitations of all military functional activities and except wearing a protective mask and all chemical defense equipment and limitations of all physical fitness testing.  He was limited to lifting or carrying 25 pounds maximum and 10 minutes of prolonged standing.

The MEB narrative summary (NARSUM) dated 12 April 2007 noted the CI had gradual onset of non-traumatic low back pain with right lower extremity radicular symptoms when deployed.  Subsequent to surgery in January 2007, he noted no improvement in his back or leg pain.  Physical examination revealed the CI to be mildly uncomfortable with ambulation and transfers, but in no acute distress.  His back was tender to very light palpation in the lumbosacral spine region and had increased lumbar pain with actual compression on his shoulders.  He had a reversal of the normal lumbar lordotic curve and straight leg raise (to determine nerve root irritation) when supine were positive.  Range-of-motion (ROM) measurements were active flexion to 50 degrees with pain beginning at 42 degrees, extension to 22 degrees with pain beginning at 17 degrees, rotation to the right to 75 degrees with pain beginning at 70 degrees, rotation to the left to 65 degrees with pain beginning at 60 degrees, side bending to the right to 25 degrees with pain beginning at 20 degrees, side bending to the left to 45 degrees with pain beginning at 40 degrees.  He could not perform the duties of his MOS secondary to his chronic low back pain and bilateral lower extremity radicular symptoms.  The commander’s statement dated 2 May 2007 indicated the CI was in the USAG Medical Retention Battalion and based on his physical profile he was incapable of performing the duties of a heavy construction equipment operator due to low back pain.  

At the VA Compensation and Pension (C&P) examination dated 13 August 2007, performed a month after separation, the CI reported being diagnosed with degenerative disc disease of the lumbar spine S/P laminectomy with constant pain in the lower back, which did not cause incapacitation and was treated with Percocet.  On examination his posture and gait were within normal limits.  He did not require an assistive device for ambulation.  There was no evidence of radiating pain on movement; muscle spasm was absent; and no tenderness was noted.  Straight leg raise was negative bilaterally and there was no ankylosis of the lumbar spine.  ROM measurements were flexion to 80 degrees, extension to 25 degrees, right and left lateral flexion 25 degrees each, and right and left rotation to 25 degrees each.  Pain was present at the end of each ROM.  Joint function of the spine was additionally limited by the following after repetitive use:  pain, fatigue, weakness, and lack of endurance; and, pain had the major functional impact by 5 degrees.  There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  Neurological examination of the lower extremities was unremarkable. 

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~3 Mo. Pre-Sep
	VA C&P ~1 Mo. Post-Sep
	
Flexion (90 Normal)	50	80	
Extension (30)	(20)22	25	
R Lat Flexion (30)	25	25	
L Lat Flexion (30)	(30)45	25	
R Rotation (30)	(30)75	25	
L Rotation (30)	(30)65	25	
Combined (240)	185	205	
Comment	Painful motion	Pain at the end of the ROMs; ROMs additionally limited by 5 degrees following repetitive use	
§4.71a Rating	PEB 20%	VA 10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating using code 5241 (Spinal fusion) for L5-S1 fusion with persistent pain.  The VA assigned a 10% rating using code 5242-5241 (Spinal fusion-degenerative arthritis of the spine) for degenerative disc disease, lumbar spine, status post laminectomy, lumbar spine with retained hardware.   A surgical scar, which was not in the scope of review, was also rated by the VA.  The Board sought a route to a higher rating, but was unable to do so in the absence of forward flexion of the thoracolumbar spine 30 degrees or less, favorable or unfavorable ankylosis, or incapacitation.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  A functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability 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 low back pain condition.  
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 pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, 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 XXXXXXXXXXXXXXXXXXX, AR20160000304 (PD201400026)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA