RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-00214
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4, Health Care Specialist, medically separated for a chronic low back pain condition.  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 “intervertebral disk degeneration L5-S1 with grade I retrolisthesis at L5-S1,” “lumbago, aggravated by mechanical activity,” “post laminectomy syndrome s/p discectomy L5-S1,” and “chronic pain syndrome,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (obesity) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic low back pain” as unfitting, 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition (obesity) was determined to be not unfitting and therefore not ratable.  The CI appealed to the Formal PEB (FPEB) which affirmed the IPEB findings and rating.  The CI did not concur, submitting a statement of rebuttal with additional information (mechanical range of motion) for further evaluation.  The PEB conducted a Formal Reconsideration which affirmed the FPEB findings and rating.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “Have a third back surgery with spinal fusion 12/19/13/ PTSD / Sleep Apnea / Diabetus / Incontance [sic]”  His complete submission is at 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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic low back pain condition is addressed below.  The requested post-traumatic stress disorder (PTSD), sleep apnea, diabetes, and incontinence conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board. No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may remain eligible for future consideration by the Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding continued or increased severity of functional impairments associated with his service connected condition.  The military Disability Evaluation System has neither the role nor the authority to compensate service members 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.  

RATING COMPARISON:  

Recon PEB – Dated 20070621	VA* - (~12 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5243	10%	Herniated Nucleus Pulposus L5-S1 Laminectomy	5243	40%**	20080618	
Other x 1 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080731 (most proximate to date of separation (DOS)).  
**Rated 10% from Prior Active Duty Period 20020801-2004062, Original VARD dated 20050302.

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) notes the CI had a long history of low back pain (LBP).  There are scant service treatment notes in the available record.  The CI underwent lumbar discectomy on 5 May 2003 for L5-S1 disc herniation causing right radiculopathy.  The CI’s symptoms initially improved, but the LBP gradually recurred with alternating radiation to both lower extremities (LEs).  A repeat lumbar MRI on 7 October 2003 noted moderate scarring causing mild spinal canal stenosis at L5-S1, degenerative disc disease (DDD), and degenerative joint disease (DJD), which had not changed since an examination on 10 April 2003 prior to surgery.  Despite conservative treatment, the back symptoms continued and a third lumbar MRI was similar to the previous one and noted the CI underwent a second discectomy (L5-S1 on the left ) in September 2006, but LBP with alternating bilateral LE symptoms persisted.  At a tele-neurosurgical evaluation on 24 January 2007, the CI reported LBP with muscle spasms and another MRI was recommended.  Lumbar MRI on 1 February 2007 was similar to the previous MRIs, but also post-operative scarring, now bilaterally at L5-S1.  According to the NARSUM, flexion and extension X-ray views of the lumbar spine noted no instability at L5-S1.  Left lower extremity electrodiagnostic studies were performed due to radiating pain to the left thigh without weakness or sensory loss and showed no evidence of radiculopathy.  

At the MEB exam on 8 February 2007, 5 months before separation, the CI reported LBP with decreased range-of-motion (ROM).  The MEB physical exam noted tenderness to light palpation of the back with marked limitation of ROM in all directions.  Straight leg raise testing (SLR) was negative bilaterally.  Gait was normal and the CI was able to toe and heel walk.  Lower extremity strength and sensation was normal.  Thoracolumbar ROM was flexion repeated three times of 10 degrees (normal 90), and combined ROM of 73, 78, and 82 degrees (normal 240).  The MEB examiner indicated the was evidence of some non-organic pain responses to exam maneuvers.

At the MEB orthopedic (ortho) evaluation the CI reported LBP with intermittent radiation to the left knee and “some urinary incontinence since 2003”, but denied numbness, weakness, difficulty walking (although with discomfort), or bowel problems.  The exam noted he CI had a history of urologic surgery as a child.  There was no TTP, but there were occasional lumbar muscle spasms with motion and SLR testing was positive bilaterally.  Thoracolumbar flexion was 40 degrees, extension 15 degrees, lateral flexion 18 degrees left, 17 right, (normal 30 each), and normal rotation bilaterally.  Lower extremity strength, sensation, and reflexes were normal.  The CI was able to heel and toe walk, but heel walking increased left LE pain.  The examiner’s assessment was LBP and stress urinary incontinence (not related to the lumbar disc disease).  

At a state disability evaluation on 6 December 2007, 5 months after separation, the CI reported constant LBP with radiation down the left LE, with paresthesias (abnormal sensations from injury to peripheral nerves, often tingling) and “very minor urinary incontinence”.  He reported difficulty with bending, standing more than 15 minutes or sitting more than 30 minutes.  The exam noted a normal gait and posture.  Lower extremity strength was graded 5/5 on the right and 5-/5 on the left, decreased sensation was noted on the outside of the left leg, and reflexes were “slightly decreased” on the left and straight leg raise testing was negative bilaterally.  The CI did not use a cane.  The exam noted lumbar spine flexion of 20 degrees and the examiner indicated “I felt this was an accurate test.”  Heel and toe walking caused back and LLE pain.  

At an Independent Medical Evaluation performed 2 February 2008, 7 months after separation, for a Social Security Disability appeal, the CI reported continued leg and back pain and numbness of both thighs.  There was TTP and muscle spasm of the thoracolumbar (TL) spine.  The exam noted TL flexion of 20 degrees.  There was positive SLR testing bilaterally, without weakness of the LEs and reflexes were reported as increased and equal bilaterally.  In February 2009, an Administrative judge determined the CI was disabled under the SSA since his separation in 2007.

There were two VA Compensation and Pension (C&P) exams prior to the CI’s second surgery in September 2006, and the Board judged they did not have probative value for its rating recommendation at separation, which was after the second surgery.  

At the C&P exam on 18 June 2008, 11 months after separation, the CI reported LBP with intermittent radiation to both buttocks.  He reported weekly flare-ups of 6 hours duration, which he described as incapacitating.  The CI reported he started “dribbling urine” in February 2005.  The exam noted a normal gait.  There was no muscle spasm, guarding, tenderness or weakness.  Thoracolumbar ROM was flexion of 30 degrees, and combined ROM of 125 degrees, with no additional loss of ROM with repetition.  There was painful motion and the examiner noted that the CI stopped ROM movement at the start of pain.  Hip flexion (L1-3) was graded 4/5 bilaterally and all other LE muscle strength was 5/5.  Sensation was noted to be absent on the soles of the feet bilaterally, and present on the top.  Knee and ankle reflexes were increased on the left and SLR testing was positive bilaterally.  Lumbar spine X-rays on 18 June 2008 noted degenerative joint disease and DDD.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5237 (analogous to lumbosacral strain).  The VA rated it 40%, coded 5243 (intervertebral disc syndrome).  The Board considered the evidence in record based on the VASRD General Rating Criteria for the spine in effect on the date of separation.  The Board noted that the evidence at the MEB exam, 5 months before separation, and all post-separation exams, including the C&P exam, support a 40% rating for TL flexion “30 degrees or less”; the MEB ortho evaluation less than 1 month before separation, supports a 20% rating for TL flexion “greater than 30 degrees and not greater than 60 degrees” 40% ROM criteria.  The Board considered that the MEB and the C&P examiners both made comments that perhaps indicated that the CI’s ROM was better than exhibited during the exams, but two private medical exams in record also supported ROM of “30 degrees or less.”  However, the Board majority noted that throughout the course of the CI’s treatment, which included two surgeries, the MRI findings were at each juncture, consistent with his reported symptoms.  Following the second surgery, when the CI reported persistent pain, there were again MRI findings consistent with the reported symptoms due to degenerative DDD, DJD, and post-operative scarring.  The consistency of objective findings (at the time of each surgery and on MRIs) during treatment caused the Board majority to have reasonable doubt that the CI was significantly exaggerating his disability.  The Board also noted that the CI was disabled under the SSA (19 months after separation), based largely on the medical evidence noted above, effective the date of military separation,.  After lengthy deliberations, the Board majority concluded that based upon resolution of reasonable doubt in favor of the CI, serial exams in record indicated that TL ROM was frequently limited to flexion of 30 degrees or less.  Therefore, IAW VASRD §4.7 (Higher of two evaluations) Board consensus was that the evidence supports a 40% rating and there was no evidence in record of TL spine ankylosis for a higher evaluation.  The Board reviewed to see if a higher evaluation than 40% was achieved coding with 5243 (Intervertebral disc syndrome) and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  However, there was no documentation in record of any incapacitating episodes to support rating with this approach.  Thus, the Board determined the evidence supports a 40% rating for the low back condition and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve or other neurologic impairment due to the back condition as separately unfitting and eligible for additional disability rating.  A functional impairment tied to fitness is required to support a recommendation for additional rating at separation.  Proximate to separation the CI reported intermittent LE pain and N/T.  At both the MEB and MEB ortho evaluations LE strength, sensation and reflexes were normal.  At post-separation exams strength was noted to be minimally reduced in the left LE and no abnormality was noted on the right and reflexes were noted to be decreased or increased on successive exams, with variable LE sensory findings reported as well.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and there was no evidence of a motor or sensory deficit associated with functional impairment prior to separation.  Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  The Board also noted that the first mention of urinary incontinence in record was at the MEB ortho evaluation in June 2007, which noted “some urinary incontinence” since 2003.  A state disability exam noted it may be related to the lumbar back condition in December 2006.  However, neither the MEB examiner, a neurosurgeon, nor the MEB ortho examiner, an orthopedic surgeon, indicated this was the case.  In fact, the MEB ortho evaluation noted stress urinary incontinence and referred the CI to a urologist for care.  The Board noted that if the urinary dysfunction was believed to be acutely related the low back condition, timely surgery would have been indicated and there was no evidence that either of the CI’s surgeries was recommended or performed urgently.  Notes in the record at the time of the surgery in 2003 did not indicate urinary incontinence as a symptom before or after surgery.  Furthermore, there was no performance based evidence in record that the urinary incontinence condition was unfitting for continued military service.  Therefore, the Board concluded that no additional rating could be recommended on this basis.

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 majority recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5243	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131231, 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, AR20160002093 (PD201400214)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% 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 40% 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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA

MINORITY OPINION:

My dissent with the majority vote is based on the totality of evidence in the service treatment record (STR) and post-separation exams conducted within one year of separation.

The minority voter believes that the orthopedic evaluation conducted less than a month prior to separation should have been assigned the determinant probative value, and accurately reflects the CI’s disability at separation (the basis of the Board’s recommendation).  That examiner (an orthopedist) noted that the CI had no difficulty with walking, had no spinal tenderness, and only intermittent spasm.  The ROM values were specified as an average of three measurements, and the results (flexion 40 degrees, combined 170 degrees) were consistent with a VASRD §4.71a rating of 20%.

All other examination evidence, invoked in support of the majority recommendation, suffered significantly in probative value; and, the minority opines that it was not consistent with the objective clinical evidence.  Unfortunately there were no outpatient STR entries in reasonable proximity to separation that provided gross ROM observations, although there were no entries indicating severe functional impairment or ROM limitation.  The initial MEB examination (5 months pre-separation) reported severe limitation flexion to only 10 degrees, yet recorded a normal gait without documentation of spasm, ability to toe and heel walk, and no pain with bilateral straight leg raise.  Additionally, the examiner specifically documented indicators of unreliable findings (six positive Waddell signs, inappropriate and overreaction responses with physical testing).  

The state disability evaluation (5 months post-separation), inherently vulnerable to psychological and secondary gain influence, recorded flexion limited to 20 degrees; but, noted “some tenderness” without documenting spasm, and did not indicate the presence of gait disturbance (specifying that no cane was in use).  This was a single measurement, not compliant with VASRD §4.46 (accurate measurement).  The VA C&P evidence was 11 months after separation, approaching the DoDI 6040.44 specified 12-month interval as elaborated in the scope section of these proceedings.  The 30 degree flexion measurement from that examination just meets the §4.71a threshold for a 40% rating, although the combined 125 degrees is within 20% parameters.  As with the above examinations, the recorded ROM limitation is not congruent with other physical findings.  The VA examiner noted a normal gait, no tenderness, and no spasm or guarding.  Furthermore the VA examiner specified, “At the point the movement started to cause pain, the veteran stopped the motion, so the furthest ROM is limited to the onset of pain.”   The minority opinion is that refusal of the claimant to attempt excursion to full limits does not meet an acceptable standard for a ratable measurement.  

The Secretary is respectfully urged to consider the minority recommendation that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Back Pain, Degenerative Disc Disease	5243	20%	
RATING 	20%