RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00892
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20090727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Contract Specialist, medically separated for “intervertebral disc disease …” with a disability rating of 20%.

CI CONTENTION:  CI contends he was diagnosed incorrectly and that his medical condition was not preexisting.  The CI’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 - 20090421	VARD - 20090827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Disease, Status-Post Surgery x2	5243	20%	Disc Herniation with Degenerative Disc Disease, Thoracolumbar Spine/Intervertebral Disc Disease…	5299-5243	20%	20081023	
			Scar, Back	7805	0%	20081023	
			Radiculopathy, Right Lower Extremity	8520	0%	20081023	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back pain condition began in 2003 after moving furniture.  In 2005 the CI sustained a sports related injury to his back.  He developed radiating pain and numbness in his right leg with profound weakness and underwent two surgeries (microdiskectomies) for right L4-5 and L5-S1 disc herniations.  Following surgery in January 2008 he continued to have radiating back pain with episodic numbness to the right leg.
Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “lower back pain” for PEB adjudication.

The MEB NARSUM examination on 21 October 2008, 9 months prior to separation, noted complaints of low back pain radiating to the right leg.  Narcotic pain medication had only a slight effect on pain and the CI could not walk for long distances and had a difficult time with some activities of daily living.  There was no subjective improvement and the CI was not interested in further surgery.  Physical exam showed a well healed midline back scar with midline tenderness.  The right Achilles reflex was absent and the straight leg test (provocative testing for radiculopathy) was positive on the right.  The examiner referred the sensory exam to the neurologist note which indicated “some give way weakness of the right LS-S1 but he has good strength grossly.”  Sensory had diminished pinprick sensation on the right anterior lower leg and diffuse diminished pinprick sensation in the right thigh.  “Gait:  Antalgic when going from sitting to standing position but able to ambulate without difficulties.”  For range of motion (ROM) the examiner referenced the physical therapy notes that documented forward flexion to 40 degrees (normal 90).  Diagnostic imaging showed mild L5-S 1 disc herniation with mild to moderate foramen stenosis due to scar tissue, the L5 nerve root was encased and mildly swollen.

At the VA Compensation and Pension (C&P) examination on 23 October 2008, performed 9 months before separation, the CI complained of stiffness, numbness, and constant lower back pain that traveled down his right leg.  Physical activity elicited pain, and pain was relieved by rest and narcotic medications such as Lortab.  The CI denied any incapacitation.  Functional impairments included pain with walking and running long distances.  Physical exam noted thoracolumbar spine tenderness with muscle spasms; however, gait and spinal contour/posture were normal.  There was no ankylosis of the spine.  The straight leg test was positive on the right and negative on the left.  “The examination reveals evidence of radiating pain on movement described as right leg.”  The examiner further noted that the functionality of the spine was limited by pain and weakness after repetitive use by zero degrees.  On examination, lower extremity strength, sensation and reflexes were normal.  The examiner stated there were signs of intervertebral disc syndrome most likely of the sciatic nerve; with normal reflexes, strength and sensory exams.  There was no bowel dysfunction, bladder dysfunction or erectile dysfunction.  Follow-on VA treatment notes documented continued treatment of back pain and right leg radiating pain with narcotics, injections, and other non-surgical modalities.

The Pain Rehabilitation note from May 2009, 2 months before separation, indicated that the CI could increase his activities and had decreased pain following radiofrequency thermos-coagulation of the right L2-L5 nerve branches.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the code 5243 (intervertebral disc syndrome), citing forward flexion of 43 degrees (there was no deduction for any pre-existing condition).  The VA also assigned a 20% rating using an analogous code 5243, based on the VA C&P examination 9 months before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees.  The VA also awarded a 0% rating coded 8520 (sciatic nerve, incomplete paralysis) and 0% coded 7805 (scars …) citing no sensory or motor deficit and a scar without tenderness, pain or instability.

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), reported on the all exams proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Any disability from the scar was considered under the ROM-based rating above.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Diagnostic imaging and neurology evaluations supported some level of radicular nerve irritation or involvement, approximately 10 months prior to separation.  However, the VA exam and pain rehabilitation notes proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, and in consideration of all 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 back condition.

BOARD FINDINGS:  In the matter of the intervertebral disc disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  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 20140221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00892.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings