RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00306
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050313

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for chronic radiating low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back conditions, characterized as “low back pain”, “lumbar herniated disc” and “lumbosacral neuritis”, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic radiating low back pain, encompassing herniated lumbar disc, as unfitting, rated 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI attached a 1-page statement to his application which was reviewed by the Board and considered in its recommendations.  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 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 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 Veterans Affairs Schedule for Rating Disabilities (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 20050111	VA* - (~9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	10%	Herniated Disc L4-L5 with Chronic Pain S/P Injury	5243-5237	20%	20051220	
Lumbosacral Neuritis	Not Unfitting	L5 Radiculopathy of the Right Leg associated with
Herniated Disc L4-L5 with Chronic Pain S/P Injury	8520	40%	20051220	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  10%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060328 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Radiating LBP Condition.  According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI developed LBP in the field in May 2003, without a specific injury, and developed radiation to the bilateral lower extremities (LEs), right worse than left.  Lumbar spine X-rays 26 May 2003 were normal and lumbar spine magnetic resonance imaging (MRI) 11 July 2003 noted a small right disc herniation at L5-S1.  At a neurology consult on 16 June 2003, the CI reported LBP with intermittent pain and paresthesias (sensory disturbances, often numbness and tingling) to both LEs.  The exam noted a normal gait and normal LE strength and reflexes, with decreased sensation on the right in the S1 distribution.  Serial physical therapy (PT) evaluations from July to December 2003 noted painful limited low back range-of-motion (ROM)  in all planes, describing flexion as fingertips “to the knees”, “to the tops of the patellas”, and “to the mid-thighs”.  Alternating with these PT evaluations, follow-up evaluations by the neurologist noted “full range of active motion”, with no motor deficits.  The final PT evaluation in record dated 23 January 2004 (14 months before separation) noted ROM of about “25% flexion” and recommended discharge from therapy due to maximum benefit having been achieved.  The CI was referred for a neurosurgical evaluation and the neurosurgeon requested electromyogram and nerve conduction velocity (EMG/NCV) diagnostic studies for consideration of surgery.  The request noted radiating pain to the RLE with normal strength and reflexes and the EMG/NCV studies performed 14 June 2004 were normal.  The CI elected conservative treatment with medications, PT, and also underwent multiple nerve root blocks on the right without sustained improvement in his back and RLE pain.  The CI was not considered a good surgical candidate and an MEB was recommended.  There were no episodes of quarters or visits for emergency medical treatment for the low back condition in the record for the 12 months before separation. 

The final permanent profile on 1 December 2004 listed a single condition of chronic LBP.  The commander’s statement noted the LBP condition and summarized the CI’s medical course and treatments.  The MEB DD Form 2808, Report of Medical History, dated 28 September 2004, 6 months before separation, noted back flexion as “hands to lower thigh 30°,” with combined ROM of approximately 110 degrees (normal 240).  There was decreased sensation in the RLE below the knee, positive straight leg raise testing (SLR) on the right, strength graded 4/5, and normal reflexes bilaterally.

At the MEB exam 5 months before separation, the CI reported LBP and RLE pain.  The MEB physical exam noted a normal gait.  There was tenderness to palpation (TTP) in the lumbar region, with equivocal SLR on the right, negative on the left.  Reflexes were normal and LE strength and sensation were normal, except on the right there was decreased strength of ankle dorsiflexion (DF) and great toe (GT) DF, graded 4+/5, and “mildly” decreased sensation in the sciatic distribution.  The CI was able to heel and toe walk without difficulty.  All thoracolumbar ROM was repeated three times and flexion was 10 degrees (normal 90) and combined ROM was 95 degrees (normal 240).  

Three VA Compensation and Pension (C&P) exams – the general medical, spine and peripheral nerves exams were performed at the same evaluation on 20 December 2005, 9 months after separation, and were documented with overlapping information and some minor discrepancies.  At the exam, the CI reported constant LBP and RLE pain and intermittent numbness and weakness of the RLE, approximately twice per week, usually after arising from bed, as well as tripping on the right foot at times.  He denied bowel or bladder problems.  He reported “fair relief” with over-the-counter medications and denied incapacitating episodes due to the LBP.  The exams noted a normal gait.  Reflexes and sensation were normal bilaterally and SLR testing was documented as positive on the right under the peripheral nerves exam and negative under the spine exam.  The was no muscle spasm noted, there was weakness of GT DF and decreased muscle tone and bulk of the right anterior tibialis muscle (ankle DF) compared to the left.  Neither the spine exam nor the peripheral nerve exam noted gross ankle weakness on physical exam, but the CI described foot drop during flare-ups when he intermittently experienced increased RLE pain and paresthesias.  Thoracolumbar ROM documented under the spine exam was flexion of 70 degrees with combined ROM of 220 degrees, with painful motion noted, and there was no additional loss of ROM with repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, citing variable ROM limited by pain.  The VA rated the back condition 20%, noting that the C&P exam did not meet the requirements for the 20% rating, but based on the all of the evidence, the next higher evaluation was deemed warranted with consideration of functional loss.  The Board noted that the evidence on the DD Form 2808 and the MEB exam supports a 40% rating according to the VASRD General Rating Formula in effect on the date of separation, while the C&P exam supports a 10% rating, though the VA granted the next higher evaluation.  The VA also provided a 40% rating for a lumbar radiculopathy of the RLE, coded 8520, citing pain, weakness, numbness, and slight muscle atrophy of the RLE.  The Board first agreed that while the examinations in the STR were not goniometric, the descriptions of the motion as fingers reaching the thighs or top of the knees were sufficiently specific and detailed to conclude the limitation of motion was less than 60 degrees.  Members noted that the neurology follow-up visits noted full ROM but nonetheless, the CI’s ROM was documented to be frequently more limited.  The Board thus agreed that the evidence at multiple PT evaluations over the 2 years before separation and the DD Form 2808 and MEB exams provides support for a 20% rating at a minimum, based upon flexion “greater than 30 degrees but not greater than 60 degrees.”  

The Board then deliberated whether the next higher rating of 40% was warranted based on the ROM at the MEB exams, despite the apparent improvement in the back condition by the time of the post-separation C&P exam, which supports a 10% rating.  After lengthy deliberation the Board agreed that although TL flexion was occasionally less than 30 degrees at exams in the STR (40% rating) and 70 degrees at the C&P exam (10% rating), based on the up and down nature of the variability of TL ROM over serial exams in record over a long period time, the disability picture due to the back condition was more nearly approximated by the 20% rating, than either the 10% or the 40% rating criteria.  The Board reviewed to see if a higher evaluation than 20% 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 incapacitating episodes as defined.  The Board thus determined that the evidence supports a 20% rating for the 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 20% for the low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported LE pain (primarily RLE).  Strength, sensation, and reflexes of the left LE were normal throughout the record, but the CI was treated for neuritis of the RLE with multiple nerve blocks.  The DD Form 2808 and the MEB exam noted “mildly” decreased sensation in the RLE sciatic distribution and mildly decreased right ankle and GT DF.  At the C&P exams RLE sensation was noted to be normal and there was mild decreased strength of RLE GT DF and localized mild decreased muscle tone and bulk, but no gross muscle weakness was observed.  The EMG/NCV studies of the RLE did not show any evidence of a radiculopathy.  The commander did not implicate the RLE symptoms as providing an additional impairment to successful duty performance and the RLE radiculopathy was not permanently profiled.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since there is no evidence of functional impairment due to the mild motor or sensory deficits of the RLE in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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 PEB may have relied on AR 635-40 for rating the low back condition in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the low back condition, the Board 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Low Back Pain Condition	5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140106, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160002144 (PD201400306)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA