RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00106
BRANCH OF SERVICE:  Army	BOARD DATE:  20141106
SEPARATION DATE:  20060317 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active SPC/E-4 (92Y00/Unit Supply Specialist) medically separated for low back pain.  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 back condition(s), characterized as “multi-level degenerative disc disease of the lumbar spine at L4-5 and L5-S1” and “right L4-5 disc protrusion with mild to moderate neural foraminal narrowing” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic low back pain without any specific history of trauma or injury (with) radiculopathy …” as unfitting, rated at  10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “IT SHOULD BE LOOKED AT ACCORDING TO VASRD INSTEAD OF DODI 1332.39”  

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 Service rating for the unfitting back condition with right leg radiculopathy is addressed below.  No other 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 20060214	VA – At Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain w/o any Specific History of Trauma or Injury (with) Radiculopathy … 	5243	10%	Degenerative Disc Disease (DDD) (Claimed as Low Back Pain and Herniated Disc at L4-L5, L5-S1 with Sciatic Nerve)	5242	20%	20060320	
Other x 0 (Not in Scope)	Other x 1 	
Combined/Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20060420 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Chronic Low Back Pain and Radiculopathy.  The service treatment record (STR) indicated that the CI had onset of back pain in February 2003 without any specific injury.  The pain worsens and radiated to the right buttock down into the right ankle.  He had back surgery (right L4-5 hemilaminectomies with discectomies of L4, L5 and S1) on 25 May 2005 with initial improvement of symptoms, but his leg symptoms returned in August 2005 (7 months prior to separation).  Treatment notes (from 5 to 11 months prior to separation) documented persistent complaints of numbness, swelling and spasms in the right leg.  Five months prior to separation, the CI’s orthopedist wrote, “[he] continues with primarily significant right lower extremity pain with limited, but persistent, low back discomfort.”  Magnetic resonance image (MRI) showed arthritis and disc protrusions including neural foraminal narrowing.  Electrophysiological studies (NCV and EMG) were abnormal and showed evidence of right nerve root irritability at the S1 level suggestive of chronic active sacral radiculopathy.  

In a letter to the MEB 14 months prior to separation, the commander stated that the CI’s physical condition created a burden for others and adversely impacted the section's readiness.  His permanent profile prohibited him from conducting physical training, marching, kneeling, or squatting.  The commander further states, “The narrowing formen [sic] is irritating his sciatic nerve causing bouts of throbbing pain then loss of sensation throughout his right leg” and “the mere act of standing for longer than fifteen minutes cause edema.”   

At the NARSUM (3 months prior to separation), the CI stated “his leg symptoms are 80% of his symptoms and his lower back pain is approximately 20% of his symptoms.  He is having radicular symptoms predominantly in the right buttock, posterior thigh, anterolateral leg and dorsal foot”.  The “lower back” exam documented “flexion to approximately 60 degrees, extension to 0 degrees,” an absent ankle jerk reflex on the right, a positive right straight leg raise test (for radiating symptoms) and otherwise normal sensory and motor exams (without any mention of spasm, contour, or gait).  “He had a well-healed midline incision in the lower lumbar spine, with mild tenderness to palpation in the lower portion of the incision”.

The MEB exam (DD Form 2808, same date as the NARSUM) showed tenderness to palpation of the lumbar spine, forward flexion to 80 degrees (normal 90 degrees) with pain and left convexity of the thorax (without any mention of gait).  A physical therapy exam, a month prior to separation, demonstrated (active) forward flexion 85 degrees (normal 90 degrees) and combined ROM 205 degrees (normal 240 degrees), without any mention of spasm, contour, or gait.  Passive ROMs were slightly greater and the examiner stated:  “Provider questions the validity of ROM measurements (due to the patients’ ability to vary) being used in any disability determination.”  There was no documentation of incapacitation (physician prescribed bed rest) following surgery attributed to the back condition.  

At the VA Compensation and Pension (C&P) exam performed 3 days after separation, the CI reported that he had throbbing down the right leg all day and a constant twitching in the lower leg with occasional swelling.  On examination the CI had tenderness to palpation in the lower back, hip area and right thigh.  The examiner stated range-of-motion (ROM) as “Flexion is active 72 degrees, passive 78 degrees 
out of 90 degrees.  He tended to have pain and a pulling sensation at 45 degrees.  …” (with other ROMs at or above the VA normal).  The CI had absent knee reflexes on both sides and an absent right Achilles (ankle jerk) reflex.  Motor testing showed normal strength in all lower extremities; heel and toe walk were normal and gait was normal.  Straight leg raise test was negative.  There was an area of hypersensitivity and “obvious visible twitching motion” on the right lower inner leg above the ankle.  The examiner concluded that the right leg pain resulted in functional limitations.  In an “Exam clarification” e-mail to the VA rater, the examiner referred to this examination and stated that:  “The ranges of motion were flexion 45 degrees, with pain, extension 30 degrees, with an upper lateral buttock ache…  The combined range of motion is 275 degrees.  The spine was not additionally limited by fatigue or weakness”.  

Of note, a remote VA exam, over 5 years after separation, documented right lower leg weakness and the VA rated the CI at 20% (coded 8520) for radiculopathy of the right lower extremity effective August 2011.  

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)	NARSUM 
~3 Mo. Pre-Sep	DD 2808 MEB
~3 Mo. Pre-Sep	PT
~1 Mo. Pre-Sep	VA C&P
~At Sep	
Flexion (90 Normal)	“approximately 60”	80	85	70 or 45 (see text)	
Combined (240)	unknown	unknown	205	220 or 195 (see text)	
Comment:  Spine formula Notes 2 & 4 applied	Not complete exam	“Pain with flexion”	Passive >active	Muscle spasm in lower leg.  Normal gait	
§4.71a Rating	20% or not ratable	10% or not ratable	10% (PEB 10%)	10% or 20%
(VA 20% see text)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the spine at 10% citing back (thoracolumbar) combined passive ROM of 305 degrees.  This indicated that AR 635-40 criteria were likely used in the rating decision, as VASRD ratings require use of active ROM and a maximum combined ROM of 240 degrees (Notes 2 and 4 of the General Spine Formula specify truncating ROM measurements to the VASRD normal limits and rounding to the nearest 5 degrees).  The VA rating of 20% was based on ROM reported in the C&P “Exam clarification” which appeared to differ from the source C&P exam.  Ratings under the General Spine Formula are “with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease.”  Additionally, any back impairment due to the CI’s scar condition was considered under the rating of the spine.

No exams in evidence documented forward flexion of 30 degrees or less (for a 40% rating) and no exam documented muscle spasm or guarding severe enough to result in abnormal spine contour (for a 20% rating based on other than ROM findings).  No exam had a combined ROM approximating the 20% rating criteria of “not greater than 120 degrees”.  Therefore the Board deliberations focused on the VASRD 10% and 20% spine rating criteria for forward flexion and which exam and measurement had the highest probative value for rating at the time of separation.  The 20% criteria is “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees”.

The NARSUM exam may have supported a 20% rating; however, it had incomplete ROMs, did not appear to use a goniometer or consider repetitions and was the most remote from separation.  The DD 2808 exam was likewise incomplete.  The physical therapy exam (used by the PEB) warranted a 10% rating IAW VASRD-only criteria.  The VA C&P exam was closest to separation and was the most comprehensive exam.  The Board concluded that the exam with the highest probative value was the VA’s C&P examination and had to consider whether the 70 degrees (original) or 45 degrees (clarification) forward flexion measurement best met the criteria for disability rating under the General Rating Formula for Diseases and Injuries of the Spine in §4.71a.  The Board adjudged that the original VA C&P exam, which carefully documented active and passive ROMs and pain onset, best reflected the entirety of the provider’s examination and indicated that the CI had painful ROM from 45 degrees to 70 degrees forward flexion, while the 70 degrees measurement (where the CI’s motion voluntary stopped) conveyed actual functional loss IAW §4.40.  The 70 degrees measurement results in a 10% rating under code 5243.  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 condition.  

Radiculopathy Contention:  The Board next reviewed the CI’s right leg condition, diagnosed as S1 radiculopathy and whether this should be rated as a distinct unfitting condition.  As part of the rating decision for code 5243, the PEB stated that, following surgery, the CI had “some relief of the radiculopathy, primarily right sided.  Neurology exam is reported as normal.”  The Board opined that this statement acknowledged the CI’s right leg radiculopathy condition and (in the absence of applying a separate disability rating) indicated that the PEB did not find the condition to be separately unfitting.  The pain component of a radiculopathy is typically subsumed under the general spine rating as specified in §4.71a and Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating (radiculopathy) to disability for back pain in spine cases.  In addition, the Board’s threshold for countering fitness determinations is “preponderance of evidence,” which 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 noted many references in the record indicating that the CI’s leg symptoms were as prominent, if not more prominent, than those of the back, such as:  clinical notes in the STR, the NARSUM (“leg symptoms are 80% of his symptoms and his lower back pain is approximately 20% of his symptoms”), the commander’s statement (“bouts of throbbing pain then loss of sensation throughout his right leg”), prior profiles and the VA C&P exam (“Right leg pain … and he has functional limitations”).  The CI’s symptoms (especially his leg symptoms) did not resolve after his surgery and he had multiple treatment episodes for his leg symptoms.  The abnormal NCV and EMG, absent ankle reflex (mixed patellar reflex) and entries indicating some sensory changes were noted.  Although weakness was not described in any of the exams, the Board concluded that the leg symptoms were of such severity that they interfered with duty performance and rose to the level of being a disability distinct from his back pain condition.  After due deliberation the Board agreed that the preponderance of the evidence with regard to the functional impairment of the right leg radiculopathy condition favors its recommendation as an additionally unfitting condition for disability rating.  

The Board next deliberated on the rating of the right leg radiculopathy.  The nerve level for rating was the sciatic nerve neuritis (8620) IAW VASRD §4.123.  The Board deliberated between the “moderate, incomplete paralysis” (20% level) and the “mild, incomplete paralysis” (10% level).  The Board adjudged that “mild” best described the CI’s disability picture proximate to separation.  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 right leg radiculopathy 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.  As discussed above, PEB reliance on AR 635-40 for rating the back condition was likely operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right leg radiculopathy condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 8620 IAW VASRD §4.124a.  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%	
Right Leg Radiculopathy	8620	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131217, 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, AR20150003716 (PD201400106)

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