RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00864
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090507

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Infantryman, medically separated for “Intervertebral disc syndrome ” and “right lower extremity radiculopathy,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:    The applicant contends he was given a higher rating for his conditions by the VA.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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:  

SERVICE PEB - 20090323	VARD - 20080731	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome, L4-5 (Disc Protrusion)	5243	10%	Degenerative Disc Disease of the Lumbar Spine, s/p Microdiskectomy of L5-S1	5242	40%	20080318	
Right Lower Extremity Radiculopathy	8599-8520	10%	No VA Placement	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20070328	
Hearing Loss	Not Unfitting	Left Ear Sensorineural 
Hearing Loss	6100	0%	20070328	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS::  50%	

ANALYSIS SUMMARY:  

Low Back.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the low back pain (LBP) condition began approximately 4 years prior to referral for MEB.  The CI injured his back while changing the tracks on a Bradley fighting vehicle.  A lumbar spine magnetic resonance imaging (MRI) showed left sided posterior protrusion of the L5-S1 disc and degenerative joint disease (DJD).  Failing conservative management, neurosurgery performed a left L5-S1 microdiscectomy (31 August 2006).  

A Compensation and Pension (C&P) examination (27 March 2007), 25 months before separation, physical examination documented a normal gait without an assistive device.  The spine examination revealed midline lumbar tenderness with normal curvatures and symmetry of motion.  There was no muscle spasm or ankylosis (joint stiffening or immobility).  Straight leg raise (SLR) tests (assess sciatic nerve root compression by a herniated disc) were negative.  Thoracolumbar spine range-of-motion (ROM) was flexion of 40 (90 normal), combined 180 (240 normal) degrees.  Spine function was additionally limited by pain following repetitive use.  It was not additionally limited by fatigue, weakness, incoordination, or lack of endurance.  There was no evidence of radiating pain on movement and no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  Strength, sensation, and deep tendon reflexes (DTRs) were normal.  A lumbar spine scan showed congenital (inborn) spinal canal stenosis (narrowing), multilevel degenerative disc disease (DDD), L4-L5 disc protrusion with significant spinal canal stenosis, and a questioned L5-S1 disc protrusion/extrusion.  A lumbar spine MRI showed facet joint degenerative changes, moderate L4-L5 and mild L5-S1 disc protrusions, and mild spinal stenosis which may cause neural compromise.  A lumbosacral spine X-ray was normal.  

The C&P examination (18 March 2008), 14 months before separation, recounted the history and interventions.  The CI complained of constant, diffuse, deep, lower back pain.  There was associated radiation to both buttocks and the right leg to the toes.  Baseline 7-8/10 pain increased to 10/10 at least 20 times a day with flare-ups.  Pain was exacerbated by driving, standing, running, and bending and relieved by change of posture, rest, and medications.  Medications were an opioid (Hydrocodone), an opioid receptor agonist (Tramadol), and an agent for muscle spasticity (Tizanidine).  The CI reported using a back brace and denied incapacitation or missing time from work.  The physical examination documented a normal gait without an assistive device.  The spine examination revealed tenderness and normal curvatures.  The SLR tests were negative bilaterally.  Lumbosacral spine ROM was flexion of 30 (normal 90), and combined 160 (normal 240) degrees.  Spine function was additionally limited by pain, fatigue, weakness, incoordination, and lack of endurance following repetitive (X3) use.  Strength, sensation, and DTRs were normal and pathologic reflexes were absent.  The examiner recounted the findings of the spine X-ray and CT.  The diagnosis listed DDD.  A lumbar spine X-ray was normal but the MRI revealed an L4-L5 disc protrusion, evidence of previous L5-S1 surgery, and a likely small perineural cyst by the left S1 nerve root.  

The NARSUM, 2 months before separation, recounted the history and interventions.  Immediately following surgery, the CI reported that his symptoms were considerably improved.  The left leg radicular symptoms were almost entirely gone and he was nearly pain free.  Over the subsequent 2 years, he had progression of symptoms.  The CI complained of worsening back pain and a new intermittent right lower extremity radiculopathy.  Chronic daily pain was exacerbated by sitting, prolonged standing, twisting, turning, bending, and lifting and relieved by lying down, stretching, hot showers, and medications.  Medications were an opioid/analgesic (Percocet), Tramadol, and Tizanidine.  The CI removed his back brace prior to the physical examination which documented a normal gait.  The spine examination revealed a well healed scar with normal curvatures.  There was no tenderness or muscle spasm.  The bilateral SLR tests caused pain.  There was evidence of psychogenic, or nonorganic, manifestations of pain with 4/5 signs positive.  Goniometer measured thoracolumbar spine ROM was flexion of 70 (90 normal) and combined 210 (normal 240) degrees.  The spine ROM was additionally limited by pain.  It was not additionally limited by fatigue, weakness, incoordination, or lack of endurance.  There is no complaint of radiating pain on movement.  Muscle tone was normal and there was no evidence of atrophy or fasciculation (twitching).  Strength and sensation were normal and pathologic reflexes were absent.  The DTRs were grossly physiologic except the bilateral Achilles tendons demonstrated hyporeflexia.  The examiner recounted the findings of the lumbar spine X-ray and MRI.  The diagnosis listed chronic LBP, status post L5-S1 microdiscectomy.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome) citing L4-5 disc protrusion, status post L5-S1 microdiscectomy, back pain, normal (5/5) strength, normal gait, no paraspinal tenderness, no paraspinal spasm, ROM, and rated for limitation of motion.  The VA assigned a 40% rating under the 5242 code (spine degenerative arthritis) based on the VA C&P examination 14 months before separation, citing lumbar spine DDD, X-ray findings, status post L5-S1 microdiscectomy, constant LBP, radiation to both buttocks and the right leg to the toes, flare-ups, regular back brace wear, normal gait, normal spinal curvatures, no ankylosis, no muscle spasm, ROM, and spine function additionally limited by pain, fatigue, weakness, incoordination, and lack of endurance following repetitive use.  The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  While the C&P examination ROM values were consistent with the 20% rating, the NARSUM ROM values were consistent with the 10% rating.  The Board agreed the most proximate source of comprehensive evidence on which to base the permanent rating recommendation is the NARSUM exam, 2 months before separation.  The Board assigned little probative value to the C&P examination because of the remote temporal relationship to the date of separation.  The NARSUM examination documented no evidence of tenderness, muscle spasm, abnormal spinal contour, or abnormal gait.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45, and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Right Lower Extremity Radiculopathy.  According to STR and NARSUM, the right lower extremity symptoms began approximately one year prior to referral for MEB.  At a physical medicine encounter, 18 month postoperatively, the CI complained of back pain with radiation into the right leg to the toes.  The radiating pain was associated with numbness and paresthesia (abnormal sensation, tingling, burning, and prickling).  He denied right lower extremity weakness, bowel dysfunction, bladder dysfunction, or any left lower extremity symptoms.  The physical examination documented a normal gait and strength, sensation, and DTRs were normal.  The examiner cited the findings of the lumbar MRI and the diagnosis listed lumbar stenosis.  The C&P examination (18 March 2008) recounted the history and interventions.  The CI complained of constant LBP with associated radiation to both buttocks and the right leg to the toes.  The physical examination documented a normal gait without an assistive device.  The SLR tests were negative bilaterally.  Strength, sensation, and DTRs were normal and pathologic reflexes were absent.  The examiner recounted the findings of the spine X-ray and CT.  The diagnosis listed DDD.  Neurology performed an electrodiagnostic (EMG/NCS) study.  The CI reported his left leg radicular symptoms resolved after the left L5-S1 microdiscectomy.  He reported he developed right leg radicular symptoms over the past year.  The CI characterized the symptoms as severe pain radiating down his right leg throughout the day.  Strength, sensation, and DTRs were normal except the left Achilles reflex was trace and sensation was mildly diminished in the dorsum and lateral aspect of the left foot.  The impressions listed an essentially normal EMG/NCS of the right leg with no acute denervation changes which would support an acute radiculopathy.  The examiner opined the trace left Achilles reflex was most likely a chronic finding status post his laminectomy and in isolation did not warrant an additional study since there were no new radicular symptoms.  The NARSUM documented that immediately following surgery, the left leg radicular symptoms were almost entirely gone and he was nearly pain free.  Over the subsequent two and a half years, he had progression of symptoms.  The CI complained of worsening back pain and a new intermittent right lower extremity radiculopathy.  The physical examination documented a normal station and gait.  The bilateral SLR tests caused pain.  Extremity tone was normal and there was no evidence of atrophy or fasciculation.  Strength and sensation were normal and pathologic reflexes were absent.  The DTRs were grossly physiologic except the bilateral Achilles tendons demonstrated hyporeflexia.  The examiner recounted the findings of the spine X-ray and MRI and normal EMG/NCS.  The diagnosis listed chronic LBP, status post L5-S1 microdiscectomy.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous code 8599-8520 (rating by analogy-mild incomplete paralysis of the sciatic nerve) citing intermittent radiculopathy, limits ability to move easily and freely, without resultant give-way that occurs with radicular pain, no motor deficits by exam, and decreased right dorsiflexion.  While the cited lower back pain radiation to both buttocks and the right leg to the toes, the VA did not confer a separate peripheral nerve rating.  The Board considered whether a rating should be recommended under a peripheral nerve code, as conferred by the PEB, for the associated sciatic radiculopathy.  Serial exams documented normal strength, tone, and gait.  There was no evidence of atrophy, fasciculation, or pathologic reflexes.  The DTRs were grossly normal overall except the left/bilateral Achilles tendons demonstrated hyporeflexia.  Sensory findings were grossly normal except one exam documented mildly diminished sensation in the dorsum and lateral aspect of the left foot.  While there were right leg subjective complaints of radicular pain, there were no objective findings of radiculopathy by electrodiagnostic (EMG/NCS) testing.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right lower extremity radiculopathy condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hearing loss and tinnitus conditions were 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 hearing loss and tinnitus were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The hearing loss and tinnitus were reviewed and considered by the Board.  The left ear hearing loss was characterized as mild high frequency sensorineural hearing with excellent bilateral word recognition scores.  The etiology of the left ear tinnitus was likely due to the hearing loss.  There was no performance based evidence from the record that the hearing loss and tinnitus conditions 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 contended hearing loss and tinnitus conditions and so no additional disability ratings are recommended.

BOARD FINDINGS: 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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hearing loss and tinnitus conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140219, 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, AR20160006652 (PD201400864)

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