RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01078
BRANCH OF SERVICE:  Army 		SEPARATION DATE:  20090220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army E-4, Cryptologic Communications, medically separated by the Informal Physical Evaluation Board for an “intervertebral disc degeneration with radiculopathy,” with a disability rating of 20%.

CI CONTENTION:  The VA rated him higher for his conditions.  His 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 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 - 20081220	VARD - 20091207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Degeneration w/ Radiculopathy	5243	20%	Lumbar Spine Degenerative Disease	5242	20%	20090520	
COMBINED RATING:  20%	COMBINED RATING:  20%	

ANALYSIS SUMMARY:

Low Back.  The service treatment record (STR) and narrative summary (NARSUM) documented initial back pain that began during basic training, and worsened after a routine physical fitness test.  Radiologic imaging documented a large disc herniation at L5-S1 with sciatic nerve compression.  Surgery was performed in August 2007 (18 months pre-separation).  At a clinic visit in October 2007 (16 months pre-separation), the examiner documented a normal gait, with normal strength and sensation.  There was pain with lumbosacral movement and full, painless thoracolumbar range-of-motion.  During two physical therapy visits in January and February 2008 (13 and 12 months pre-separation), the examiners documented a non-antalgic gait and full ROM with painful motion in the lumbosacral region.  Normal strength and neurologic exams were documented during both visits.  During two subsequent physical therapy visits in March and May 2008 (11 and 9 months pre-separation), the examiners documented a non-antalgic gait and full non-painful lumbosacral ROM with normal strength and neurologic exams.  During a follow-on physical therapy exam in July 2008 (7 months pre-separation), the CI reported 4/10 pain in the left buttock during exercise.  The examiner documented forward flexion to the mid shin and normal side bending.  There was radiation of pain with nerve tension testing.  Neurologic testing was normal bilaterally, except for diminished ankle reflexes and a “mild discrepancy” over the L5 nerve distribution.  Radiographic imaging (MRI) also in July 2008 documented a posterior disc bulge that resulted in narrowing of the spinal canal and left nerve canal.  At a primary care visit in September 2008 (5 months pre-separation), the CI reported radiating pain, numbness, and paresthesias of both lower extremities.  The examiner documented “decreased” ROM of the lumbar spine, decreased (“4/5”) but symmetric reflexes, and no signs of radiation with nerve tension testing.

A neurosurgery NARSUM dated 18 September 2008 (5 months pre-separation) documented the CI with relief after surgery.  Pain was exacerbation after resuming military activities such as prolonged sitting, standing running, and marching with heavy loads.  He also reported intermittent bilateral feet “numbing” but denied lower extremity weakness.  The examiner documented a normal gait, normal spinal curvature, and tenderness of the lumbar paraspinal musculature.  Flexion and extension were “limited” due to “tenderness,” with no measurements performed.  The nerve tension testing was positive on the left side.  Bilateral lower extremity strength and neurologic testing were normal.  The examiner opined that a July 2008 MRI did not appear to show significant nerve impingement.  On the Medical Evaluation Board (MEB) DD Form 2807-1, Report of Medical History, dated 7 October 2008 (4 months pre-separation), the CI reported severe pain with numbness and tingling in his feet.  On the MEB DD Form 2808, Report of Medical Examination, dated 7 October 2008, the examiner documented no spasm, no tenderness, and no abnormal spinal contour.  Pain was observed on forward flexion.  On the MEB DD Form 2697, Report of Medical Assessment, dated 30 October 2008, the CI reported “chronic low back pain, numbness in the left leg and foot, and pain in the left and right legs.”  There was no STR documentation of ankylosis and no documentation of physician prescribed bed rest for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in the 12 months prior to separation.

The MEB NARSUM exam was performed on 30 October 2008 (4 months pre-separation).  The CI reported that his chronic back pain hindered his normal life (cannot weight lift or sit for more than 30 minutes).  The examiner documented a normal gait and ability to stand from a seated position.  There was no abnormal spinal contour, no muscle spasm, and no tenderness to palpation.  His nerve tension testing was negative and bilateral reflex testing was normal.  There was pain with forward flexion to 30 degrees (normal 90).  Left lateral flexion was to 20 (normal 30).  Extension, right lateral flexion, and bilateral rotation were all normal.  After repetition, forward flexion was decreased to 20 degrees and left lateral flexion improved to 30 degrees.  Lower extremity strength was symmetrically decreased (4/5).  During a neurology consultation for further testing in November 2008 (3 months pre-separation) the examiner documented a normal gait and lower extremity strength.  There was negative nerve tension testing.  Decreased sensation of the left foot and a decreased left ankle reflex were documented.  Electrophysiologic testing documented a “mild ongoing left S1 radiculopathy.”

At the VA Compensation and Pension (C&P) exam dated 20 May 2009 (3 months post-separation), the CI reported numbness of the left foot and paresthesias of the left thigh.  He denied fatigue, weakness, incoordination, and incapacitating episodes.  Flare ups occurred after prolonged walking, standing or sitting.  The examiner documented a normal gait.  Thoracolumbar flexion was 45 degrees, and extension was 10 degrees.  Bilateral rotation and lateral bending were normal.  There was pain, spasm and fatigue with all movement; however, with no changes in ROM after repetition.  There was no weakness or atrophy of the lower extremities.  There was radiating pain on the left with nerve tension testing, decreased right ankle reflex (1/4) and an absent (0/4) left ankle reflex.

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the “intervertebral disc degeneration with radiculopathy” as unfitting, rating 20% coded 5243 (intervertebral disc syndrome).  The VA rated 20% for the “lumbar spine degenerative disease, status post L5-S1 discectomy,” coded 5242 (degenerative arthritis of the spine).

The Board considered the evidence for a higher rating.  There was no evidence of ankylosis and no documentation of physician prescribed bed rest for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in the 12 months prior to separation in support of a higher rating.  There was pre-separation evidence (MEB NARSUM) of thoracolumbar flexion to 30 degrees or less that was in contrast to a post-separation exam (VA C&P exam) that documented flexion to 45 degrees.  The Board noted that the MEB examination supported a 40% rating based on limitation of thoracolumbar range-of-motion while the proximate post-separation VA C&P examination supported a 20% rating based on limitation of thoracolumbar motion.

Due to the significant differences between the ratings adjudicated by the PEB and VA, the Board carefully considered the whole record in order to develop a consistent picture of the CI’s back condition.  The limitations-of-motion recorded during the MEB and VA examinations were not so different as to be inconsistent with the CI’s back condition.  Board members agreed that both the MEB and VA examination were of equal quality with regard to rating the back condition at the time of separation and also noted that there was no other evidence proximate to separation which would add weight favoring the 40% versus the 20% rating.  There were several entries in the 18 months prior to separation that documented normal or near normal ROM.  There were no specific measurements made during this time, but the descriptions more closely approximate the 10% rating that is conferred for thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees.  This evidence and the post-separation VA C&P exam were determined to carry the predominant probative value in its rating recommendation favoring the 20% rating.  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 intervertebral disc degeneration condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had degenerative disc disease with radicular pain, and there were symptom of radiating pain documented in the treatment records; however, the majority of the exams indicated normal strength, reflexes and gait and the sensory changes did not affect his job.  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.  Therefore the critical decision is whether or not there was a significant motor weakness or sensory impairment which would impact military occupation specific activities.  There was no evidence in this case that motor weakness or sensory impairment existed to any degree that could be described as functionally impairing.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that this condition could not be recommended for additional disability rating.

BOARD FINDINGS:  In the matter of the intervertebral degenerative disc condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended radiculopathy condition, 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.  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 20140227 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160004550 (PD201401078)

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