RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01373
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070606  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aircraft Powertrain Repairer) medically separated for a lumbar spine and associated radiculopathy conditions which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnoses “chronic lumbago,” “sensory loss right L-5 distribution,” “right sided L-5 weakness,” and “loss of tibialis anterior reflex, right” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted.  The Informal PEB consolidated the neuropathy diagnoses as “right L5 weakness and sensory loss,” as one unfitting condition, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD); and, adjudicated “chronic back pain, status post L4-5 weakness,” as a separate unfitting condition, rated 0%, citing criteria of Army Regulation (AR) 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests that the “Board conduct a review of the Soldier's rating and find him retired at 30% and in line with VA ratings” specifying only the conditions found unfitting and rated by the Service.  The 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 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 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 20070413	VA* - (3 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right L5 Weakness and Sensory Loss	8599-8520	10%	Radiculopathy, Right Lower Extremity …	8520	10%	20070906	
Chronic Back Pain, Status Post L4-5 Weakness	5241	0%	Status Post L4-5 Fusion with Degenerative Arthritis	5243-5242	20%	20070906	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20071101 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Neuropathy Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of right lower extremity (RLE) pain and radicular symptoms in 2003 after a training accident.   Magnetic resonance imaging (MRI, with serial studies) demonstrated a large L4/5 disc protrusion with right neural encroachment.  The CI underwent a protracted trial of conservative treatment and enjoyed extended periods of relief after epidural steroid injections; but, eventually went to surgery for intractable symptoms: an L4/5 fusion in July 2006 (10 months pre-separation).  The NARSUM stated that the radicular pain was resolved after the surgery, with no STR entries to the contrary, and the MEB appeared to have been initiated for a recurrence of back pain.  There were pre-operative STR entries noting RLE distal L5 sensory deficits and one noting 4/5 distal extensor weakness, but there were no post-operative outpatient STR entries which addressed radicular symptoms or neurological findings.  There was no STR evidence of electrodiagnostic testing.

The NARSUM (neurosurgery) was conducted 9 March 2007 (3 months pre-separation) and documented no concurrent complaints of weakness or sensory symptoms, and did not elaborate any specific functional limitations attributed to the neuropathy.  The physical examination, however, recorded 4/5 motor strength of the right tibialis anterior muscle (dorsiflexion and inversion of the foot), absent tibialis anterior reflex, and “mild decreased sensation ... L5 distribution.”

A VA Compensation and Pension (C&P) examination was conducted 6 September 2007 (3 months post-separation) and documented the absence of radicular pain or impaired coordination, but a subjective complaint of weakness with prolonged walking; and, the CI stated that “he can keep up with his normal work requirements.”  The VA physical examination (RLE) recorded, “Sensory deficit of right dorsal foot and right lateral foot.  Motor weakness of right great toe extension 4/5” (an L5/S1 deficit for which there was no MRI pathology).”  Reflexes were normal.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA conferred a 10% rating under code 8520 (sciatic nerve) for “mild” impairment, which offers 20% for “moderate” impairment.  The Board noted that the more appropriate nerve code for assessing disability in this case is 8521 (common peroneal [innervates tibialis anterior]), although the “mild” and “moderate” ratings are the same as for 8520.  Members considered whether the moderate (20%) rating level was fairly assigned, but agreed that moderate impairment should entail at least some functional limitations encroaching on occupational tasks; and, that this threshold was not supported by the evidence.  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 rating of the RLE neuropathy; although, proposes a code change to 8521 as justified above.    

Lumbar Spine Condition.  The spine condition of course followed the same evolution as that elaborated above for the associated neuropathy.  There were no STR entries commenting on thoracolumbar range-of-motion (ROM), but gross physical exam observations did not imply serious ROM limitation.  There was documentation of a normal gait in the STR, with no entries to the contrary, and no comments addressing spinal contour.  There was no STR documentation of incapacitating episodes after surgical recovery.

The NARSUM documented “dramatic improvement” from the surgery, but still “significant back pain which limits his ability to do vigorous activities associated with military career.”  The exam noted a “mildly antalgic” gait and surgical healing with no comment on tenderness, spasm, guarding, or spinal contour.  Physical therapy (PT) ROM measurements were performed for the MEB (21 March 2007, 2 weeks after the NARSUM) and recorded flexion to 50 degrees (normal 90) and combined ROM of 175 degrees (normal 240); annotating painful motion.  The PT examiner noted a normal gait and spinal contour with the absence of tenderness, spasm, or guarding.

The post-separation VA C&P examiner documented daily frequent episodes of pain rated 5/10 “elicited by physical activity and standing or sitting.  The VA physical examination recorded a normal gait, paraspinal tenderness, and the absence of spasm.  The VA measured ROM was flexion to 60 degrees and combined 190 degrees, specifying pain thresholds.  
 
The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 5241 (spinal fusion) was supported by AR 635-40, but was not compliant with VASRD §4.71a criteria for the MEB PT ROM measurements, which would yield a 20% rating per §4.71a.  The VA’s 20% rating under 5243-5242 (intervertebral disc syndrome- degenerative arthritis of the spine) was compliant with §4.71a for the VA ROM evidence.  All of the ROM evidence in this case yields a §4.71a rating of 20%, and there is no contrary evidence which would defend a lower rating.  There is no evidence for incapacitating episodes which would yield a higher rating under that formula.  After due deliberation, considering all evidence and conceding any reasonable doubt, the Board recommends a 20% rating for the lumbar spine condition; proposing code 5241 for its clinical specificity.

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 rating the spine condition was possibly operant in this case, and it was adjudicated independently of that regulation by this Board.  In the matter of the right lower extremity neuropathy and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating of 10%, but a change in code to 8521.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5241, IAW VASRD §4.71a.  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	
Right Lower Extremity Neuropathy due to Lumbar Disc Disease	8521	10%	
Residuals of Surgical Fusion (L4/5), Lumbar Spine 	5241	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140320, 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 XXXXXXXXXXXXXXXXXXXX, AR20160003997 (PD201401373)

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 30% 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 30% 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