RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00416
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061025

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Motor Transport Operator) medically separated for lumbar spine back pain and left-sided lumbar radiculopathy.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P2U3L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbar radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded nine other conditions (left ulnar neuropathy, benign prostate hypertrophy, urge incontinence, anxiety disorder, cervicalgia, tinnitus, hypertension, hyperlipidemia, and erectile dysfunction) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “lumbar back pain” and “left-sided lumbar radiculopathy” as separately unfitting, rated 10% and 10%, respectively.  The remaining conditions were determined to be not unfitting.  The CI non-concurred with the PEB findings, but waived a Formal PEB (FPEB).  The US Army Physical Disability Agency (USAPDA) reviewed and affirmed the PEB findings and ratings and the CI was medically separated.  

CI CONTENTION:  The applicant contends for his back condition and that his condition required daily medication.  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 20060929	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Back Pain… 	5241	10%	Status Post Posterior Surgical Fusion with Pedicular Screws and Metal Rod Placement in L4-S1, as the Result of Degenerative Disc Disease.	5010-5243	40%	20070423	
Left-Sided Lumbar Radiculopathy ...	8599-8520	10%	Lumbar Radiculopathy to the Left Lower Extremity Associated with Status Post Posterior Surgical Fusion with Pedicular Screws and Metal Rod Placement in L4-S1,
as the Result of Degenerative Disc Disease	8520	20%		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7 (equals SC, NSC & deferred)	
RATING:  20%	RATING:  60% 	
*Derived from VA Rating Decisions (VARD) dated 20070703 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY: 

Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of a history of back pain dating to 1987 (no trauma).  This was aggravated in 2004 during a deployment to Iraq (“heavy lifting and climbing”).  Magnetic resonance imaging (MRI) diagnosed bi-level disc disease (“mild” bulges L4/5 and L5/S1, small annular tear); and in October 2005, after failing a series of epidural injections, a “minimally invasive” surgical fusion was performed.  With persistent pain a second procedure (graft revision) was performed in January 2006 (10 months pre-separation), and a follow-up note 6 weeks later documented improvement of symptoms; but, it was judged that the CI could not tolerate the strenuous requirements of his MOS and was not a candidate for further surgical intervention.  Throughout the clinical course there are numerous STR entries (including post-operatively) which comment on grossly normal thoracolumbar range-of-motion (ROM); the only exception being a physical therapy note for flexion of 60 degrees (normal 90) nearly two years prior to separation.  There is likewise ample STR documentation of normal gait (with no STR documentation for the use of a cane or assistive device) and spinal contour, and the absence of spasm; with none to the contrary except as noted below.  There is no STR documentation of periods of incapacitation (excluding surgical recovery).  There are various STR entries reflecting an examiner opinion that symptoms and exam findings were suspect of exaggeration, and indications of psychological overlay with domestic issues.  An examiner in April 2004 (late MEB period) recorded that the CI was “limping” and “refused passive or active motion” for ROM measurement; and, noted positive exam signs for exaggerated findings and the absence of spasm or lordosis.  An evaluation by a civilian contracted rehabilitation examiner documented that the CI “has shown a very significant pattern of symptom magnification” and extensively detailed objective rationales for that conclusion.  The ROM measurements cited in the NARSUM were provided by the same facility (different examiner).  These were dated 11 May 2006 (5 months pre-separation) and recorded flexion to 30 degrees, extension 20 degrees (normal 30), and right and left lateral flexion of 20 degrees each (normal 30), documenting the absence of spasm.

The NARSUM was conducted 22 May 2006 and documented constant pain rated 8/10 “increased with standing, sitting, and riding for prolonged periods.”  The physical examination and ROM measurements were imported from the rehabilitation examiner 11 days earlier (just cited above).

An initial VA Compensation and Pension (C&P) examination was 5 October 2006 (three weeks pre- separation) and documented “daily pain in his low back ... uses a cane to walk ... does not identify the doctor who prescribed his cane ... walks every day for 10 to 30 minutes.”  Conversely the physical examination recorded a normal gait.  The examiner recorded that the CI “yelled loudly” with attempts at passive ROM and abandoned attempts at ROM measurements, noting “I have little confidence in the reliability of physical examination.”  

A follow-up C&P examination for rating ensued on 23 April 2007 (6 months post-separation) and there was no documentation of interim injury or other exacerbation of the condition.  This examiner described pain “present all of the time at a level of 7/10,” exacerbated by walking and “when he lies down for long and in cold weather.”  The physical exam recorded “walks with a cane...severe antalgia...can only take a few steps without the cane,” tenderness, and “moderate to severe spasm.”  The ROM measurements were flexion 25 degrees, extension 0 degrees, and lateral flexion 5 degrees right/10 degrees left.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under 5241 (spinal fusion) documented ROM limitation by pain (AR 635-40) without reference to the NARSUM documented flexion of 30 degrees which is the VASRD §4.71a threshold for a rating of 40%.  The VA’s 40% rating under 5010-5243 (traumatic arthritis rated as intervertebral disc syndrome) referenced the ROM evidence from the second C&P examiner.  Neither of the formal ROM measurements evidenced in this case complied with VASRD §4.46 (accurate measurement) since there was no measurement of spinal rotation for determination of combined ROM, although the two measurements in evidence (the civilian rehabilitation examiner and the second C&P examiner) document flexion satisfying the §4.71a criterion for a 40% rating.  Members note, however, that the probative value of both of these examinations is significantly mitigated by a preponderance of contradictory preceding STR evidence over a 2-year period; and, there was explicit documentation of suspected psychological distortion by several providers.  Although there was intervening surgery closer to separation, there was a 10-month interval after the last procedure with interim documentation of a favorable recovery and improvement compared to pre-operative symptoms.  

With careful consideration of these issues, there was protracted deliberation with regard to weighing the probative value of the disparate evidence.  It remains however that the only measured ROM evidence available to the Board supports a 40% rating under the VASRD.  Although the fairly abrupt development of severe ROM limitation and gait disturbance at the time of separation would not ordinarily be expected from a clinical standpoint, it is overly speculative to assume that there was not an unfavorable turn in the post-operative course.  It is also noted that the C&P examiner documented significant muscle spasm, an objective finding corroborating the observed ROM limitation.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 40% rating for the lumbar spine condition, agreeing with the PEB code 5241 for its clinical specificity.

Lumbar Radiculopathy.  The CI developed a complaint of left lower extremity (LLE) radiation and sensory symptoms (intermittent report of numbness) associated with the back pain some months after the onset.  There was no subjective complaint of LLE weakness in Service notes.  There are multiple neurological examinations in evidence throughout the clinical course.  All were normal (many documenting 5/5 LLE strength) except for give-away weakness (voluntary influence) on one examination and poor cooperation on another.  There is no STR documentation of any specific functional limitation attributable to the LLE radiculopathy.  A medial (non-dermatome) LLE sensory deficit was documented by the rehabilitation examiner at the time of the above ROM measurements.  The NARSUM documented LLE radiation, but did not note any sensory or motor symptoms, and cited the rehabilitation examiner’s neurologic findings.  A civilian neurologist was contracted for an evaluation shortly before the PEB (September 2006, a month pre-separation).  This consultant documented absent LLE reflexes, “variable” strength testing “with some degree of give way weakness” and electrophysiologic (EMG) findings were interpreted as “essentially normal nerve conduction,” although there was some indication of prior left sciatic nerve injury (“some evidence of re-innervation suggesting prior denervation”).     

The initial VA examiner (as above) documented “pain and numbness all over his left leg in no known spinal nerve distribution” and failure of the CI to participate in neurologic testing.  The second VA examiner documented LLE pain radiation and the specific denial of subjective weakness by prior examiners, but a contemporary complaint that “the left leg feels weak since the surgery.” Under the neurologic exam, the examiner recorded “I could not check the strength ... due to a complaint of pain,” and noted sluggish but symmetric reflexes and a lateral LLE sensory deficit (contrasting with the rehabilitation examiner’s finding of a medial deficit).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s rating under 8250 (sciatic nerve code) cited the findings of the neurology consultant detailed above, which was assessed as “mild” impairment for a 10% rating.  The VA’s rating under the same code stated that an LLE radiculopathy “is not diagnosed on VA examination,” but granted service connection based on service records; and, assessed the impairment as “moderate” for a 20% rating (citing the complaint of weakness since surgery and the lateral LLE sensory deficit from the second C&P examination).  Members deliberated if the radiculopathy was more fairly rated as mild or moderate. The Board also considered “moderately severe” for a 40% rating, but members agreed that the latter was not supported. 

Members further agreed that some element of functional significance was required to support a moderate nerve rating; and, that this element was tenuously (if at all) supported in this case.  The preponderance (by far) of the objective evidence indicates that there was no significant LLE weakness; the evidence suggesting that there may have been weakness suffers in probative value; and, the EMG findings are weighty evidence supporting the absence of a functionally significant deficit.  The variable sensory findings were not associated with functional consequences.  Members thus agreed that there was insufficient evidence of significant functional impairment to underpin a recommendation for the moderate rating.   After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar radiculopathy.

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 spine rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine condition, the Board, by a majority vote, recommends a disability rating of 40%, coded 5241, IAW VASRD §4.71a.  In the matter of the left lumbar radiculopathy and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  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	
Surgical Residuals, Degenerative Disc Disease, Lumbar Spine 	5241	40%	
Left Sciatic Radiculopathy	8520	10%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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, AR20160003584 (PD201400416)

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 50% 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 50% 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