RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-00316
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Cavalry Scout) medically separated for chronic low back pain (LBP).  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 lower back pain S/P fusion of L4-5” and “L4-5 radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic LBP status post L4-5 fusion, spasm and tenderness present thoracolumbar range-of-motion (ROM) greater than 240 degrees although soldier has sensory and electro-diagnostic findings of a radiculopathy, there are no motor findings (reflexes are equal and strength equal)” as unfitting, rated 10%.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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/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 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 20051004	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain L4-5 Fusion…Radiculopathy…	5241	10%	Status Post L4-5 Fusion with DDD …and Radiculopathy	5242	10%	STR	
Other x 0 	Other x 12	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20061026 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Lower Back Pain S/P Fusion of L4-5.  The STR relevant to the CI’s back pain complaints began in 1994 whereby he fully recovered after receiving conservative medical treatment.  He again indirectly reinjured his back in 2002 which caused back pain with extension into both lower extremities.  Radiographs revealed degenerative disc disease (DDD) of the lumbosacral spine.  Due to persistent back pain and extended radiculopathy the CI underwent a lumbar spinal fusion in March 2003.  Post-operatively, his symptoms completely resolved, only to return in July 2004 without additional injury.  Electro-diagnostic studies conducted in June 2005 concluded evidence for a right L4-L5 radiculopathy.  A repeat magnetic resonance image (MRI) performed on 02 July 2005 noted no significant stenosis or compression of neural structure at any level.  In August 2005, he was permanently profiled as a P3 under the P-U-L-H-E-S classification system and was referred to an MEB.  At the MEB examination (3 months prior to separation), the CI’s chief complaint was LBP and endorsed the inability to stand greater than 15-20 minutes, lift more than 30 pounds, and limited activities of daily living to a maximum of ‘moderate’ lifting and pushing.  “The wear of his personal protective gear causes an immediate onset of pain.”  Additionally, he noted continued numbness and tingling in the right leg and left foot.  His physical examination (PE) was brief and revealed a mildly antalgic gait, paraspinal muscle spasm, and a subjective sensory deficit in the right leg and left foot.  Thoracolumbar ROM was decreased.  

A remote VARD (proximate to separation) indicated an original 10% impairment rating was applied for mild limitation of motion in the presence of spinal spasms…as gathered from various STRs.  Also noted was the absence of objective symptoms of radiculopathy as previously noted on the MEB.  The STR did not show additional limitation of motion or function of the lumbosacral spine due to pain or any other symptoms which meet the criteria to the next higher evaluation.  The goniometric 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)	PT ~4 Mo. Pre-Sep
(20050817) 	MEB ~3 Mo. Pre-Sep
(20050907) 	
Flexion (90 Normal)	80	90	
Extension (30)	30	20	
Comment	painful motion	spasm; mildly antalgic gait; sensory deficit in lower extremity; 	
§4.71a Rating	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied similar codes of 5241 (spinal fusion) and 5242 (degenerative arthritis), respectively, which was appropriate to the presenting pathology.  The ROM findings as measured by PT and the MEB were similar in flexion and extension.  Board members first acknowledged that the evidence of spasm coupled with a mildly antalgic gait could possibly be supported at the 20% level based upon the criteria of, “…or muscle spasm severe enough to result in an abnormal gait…”  However, upon further discussion, all members agreed that the additional evidence of full thoracolumbar flexion at 90 degrees indicated that any spasm that was present would not be at the severity to cause an altered gait.  Ultimately, all Board members agreed to provide benefit of doubt in favor of the CI and rate at the higher level.  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 chronic LBP condition.      

L4-L5 Radiculopathy.  The Board also considered whether additional rating could be recommended under a peripheral nerve code, for the residual painful radicular component as described at the MEB.  The PEB chose to bundle the LBP and radiculopathy together as a single unfitting condition.  Functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spinal cases in effect at the time of separation.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), however; each unbundled condition must be reasonably justified as separately unfitting to remain eligible for service rating.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Although this case revealed subjective sensory deficit as well as an electro-diagnostic study indicating a mild right sided radiculopathy, there was no evidence of limited motor control, strength deficit, or sensory deficit to the degree that would have significantly interfered with the CI’s satisfactory duty performance.  Board members concluded that there was insufficient evidence of a separately ratable functional impairment (with fitness implications) from any reported radiculopathy symptoms; and therefore, the Board cannot support a recommendation for an additional disability rating 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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the radiculopathy condition and IAW VASRD §4.71a, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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	
Chronic Lower Back Pain S/P Fusion of L4-5 	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130107, 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 XXXXXXXXXXXXXXXXXX, AR20160000182 (PD201400316)

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:

CF: 
(  ) DoD PDBR
(  ) DVA