RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00372
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20060827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E6 (Military Police) medically separated for chronic radiating low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U2, L3, H3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain with radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (see rating chart below) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic radiating low back pain” as unfitting, rated 10%.  The remaining condition was determined to be not unfitting.  The CI made no further appeals and was transferred to the Retired Reserve List awaiting pay at age 60 pursuant to his request.  

CI CONTENTION:  The applicant’s mother stated the CI was not rated for all of his disabilities:  broken back, tinnitus, knee pain and Post Traumatic Stress Disorder.  Her complete submission, on behalf of the CI, 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:  

Admin Coor IPEB – Dated 20060718	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5237	10%	Degenerative Disc Disease, Lumbar Spine with Compression and Bilateral Lower Extremity Radiculopathy	5243	10%	20061130	
Knee Pain Bilaterally	Not Unfitting	Degenerative Joint Disease, Bilateral Knees	5010	NSC		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070803 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Degenerative Disc Disease.  The service treatment record (STR) and narrative summary (NARSUM) documented several back injuries prior to 2005 resulting in no residual pain.  At a clinic visit in August 2005 (12 months pre-separation), the CI complained of right ankle pain and numbness in the toe worsened by lumbar flexion and extension.  The examiner documented back pain with straight leg raise, and symmetric reflexes.  Multiple radiographs in August 2005 documented degenerative disc disease at L4-S1 with no evidence of spondylitis cysts or spondylolisthesis.  There were osteophytes and disc bulging compressing the right nerve root at L4-5 and L5-S1.  At a visit in September 2005 (11 months pre-separation), the examiner documented decreased sensation over the medial and dorsal right foot, extensor weakness of the right great toe, and normal reflexes of the lower extremity.  There was “limited” range-of-motion with flexion to 45 degrees (normal 90), and lateral bending and extension described as “approximately half of what would be expected.”  Repeat imaging in October 2005 documented similar findings.  At a physical therapy visit in October 2005 (10 months pre-separation), the examiner documented a normal gait, with decreased (4/5) strength of the right toe (extensor hallucis longus), “trace” ankle reflex on the left, normal sensation bilaterally, and no pain with straight leg raise.  At physical therapy visits in November and December 2005 (8-9 months pre-separation) the CI reported 30% improvement.  The examiner documented similar findings at both visits: a normal gait with full flexion of the lumbar spine; decreased strength (4/5) of right toe dorsiflexion; and decreased sensation of the right foot in the L4 and L5 distribution.  On the MEB DD Form 2808, Report of Medical Examination dated 20 January 2006 (7 months pre-separation), the examiner documented “global” decrease in range-of-motion of the lumbar spine.  There was no STR evidence of more significant limitations in range-of-motion, and no documentation of physician prescribed bed rest for incapacitating episodes.  

The MEB NARSUM exam was performed on 15 March 2006 (5 months pre-separation).  The CI reported constant 3-4/10 back pain that was accompanied by right foot and buttock pain, and worsened by prolonged sitting or exercise.  The CI wore a back brace most of the time and held onto handrails because of weakness of the right leg.  The examiner documented a normal gait and tenderness to palpation of the right paraspinal muscles.  There was weakness of right great toe dorsiflexion, and the right calf circumference measured 2-1/4cm less [atrophy] than the left.  There were normal reflexes at the knee however the ankle reflex was absent on the left.  Sensation was decreased in the medial right foot.  Thoracolumbar flexion was 45 degrees (normal 90), and extension 5-10 degrees (normal 30).  Lateral bending was “75% of normal.”  Nerve tension testing was positive on the right.  On 23 March 2006, physical therapy ranges-of-motion were documented as flexion of 90 degrees, extension of 30 degrees (normal), left lateral flexion of 25 degrees (normal 30), right lateral flexion of 20 degrees (normal 30), with normal bilateral rotation.  Painful motion was documented during extension, and right rotation and lateral flexion.  
At the VA Compensation and Pension (C&P) exam performed on 30 November 2006 (3 months post-separation), the CI reported wear of lumbar support, pain radiating to the right buttock, and loss of sensation in the right foot.  The examiner documented a normal gait and tenderness to palpation of the lower lumbar spine.  There was decreased sensation on the right and in the L5 distribution of the left foot with positive nerve tension testing on the left.  There was documentation of painful motion with forward flexion to 80 degrees (normal 90).  Extension, bilateral flexion, and bilateral rotation were all normal (30 degrees each).  There was no additional loss of motion after repetition.  Reflexes and strength were normal bilaterally; and there was no difference in mid-calf circumference.  Radiographs obtained documented degenerative changes of the lumbar spine, from L4-S1 and greatest at L5-S1 with disc space narrowing.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the chronic radiating low back pain (with radicular symptoms) as unfitting, and rated 10%, coded as 5237 (lumbosacral strain).  The VA granted service-connection for the degenerative disc disease of the lumbar spine, bulging disc with compression and bilateral lower extremity radiculopathy, and rated 10% as a single condition, coded 5243 (intervertebral disc syndrome).  

The Board first considered the evidence for a higher rating.  There was one visit, 11 months pre-separation, that documented flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; however, all subsequent exams documented flexion greater than 60 degrees in support of a 10% rating.  There was no documentation of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour in support of a higher rating.  There was no documentation of physician prescribed bed rest for incapacitating episodes to support a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication.  

Right Lower Extremity (L5) Radiculopathy.  The Board next considered if the radiculopathy, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The radiculopathy was not specifically profiled.  It was considered unfitting by the NARSUM examiner and forwarded by the MEB for adjudication.  Although there was some was clinical evidence of motor weakness of the toe, the impairment was relatively minor; significant weakness was not documented, and could not be linked to significant functional consequence.  There were no confirmatory electrophysiologic studies performed to support the diagnosis of a right L5 radiculopathy in this case.  The commander’s statement was nonspecific and did not reference the radiculopathy.  The sensory component in this case had no functional implications.  Members agreed that there was no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  After due deliberation in consideration of the totality of the evidence, the Board concluded that there was insufficient support for recommending an additional disability rating for the right lower extremity (L5) radiculopathy.  

Contended PEB Conditions.  

Bilateral Knee Pain.  The Board’s main charge was to assess the fairness of the PEB’s determination that the bilateral knee condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The bilateral knee condition was reviewed and considered by the Board.  

The evidence from the record documented that the left knee condition was permanently profiled in October 2002 as “degenerative joint disease with chondral defect of the left knee,” and resulted in restrictions that included the two mile run but allowed an alternate aerobic event (2.5 mile walk).  The profile for the back condition in January 2006 was more extensive and specific for the back and did not specifically include the bilateral knees.  The profile was updated in March 2006 (5 months pre-separation) to include the knee condition; however, no further restrictions were added.  The bilateral knees were included and judged to fail retention standards by the NARSUM examiner; however, the examiner did not elaborate on the functional impact of either knee on his MOS.  The commander’s statement was nonspecific regarding any functional impact of the knees on his MOS as a military policeman.  A significant majority of the knee exams in the STR (and post-separation) documented normal range-of-motion with no chronic disability.  There was thus no performance based evidence from the record that either knee condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the bilateral knee condition and so no additional disability ratings are recommended.  

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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right lower extremity radiculopathy, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended bilateral knee condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20131218, 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 XXXXXXXXXXXXXXXXXXXXXXXXXX, AR20160002 (PD201400372)

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