RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01390
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Wheeled Vehicle Mechanic, medically separated for “chronic radiating low back pain,” with a disability rating of 0%.

CI CONTENTION:  Contends for his “injuries” as well as PTSD.  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 - 20060620	VARD – 20070328	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5241	0%	Surgical Residuals, Lumbar Spine	5241	20%	20051212	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Low Back.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI experienced an atraumatic onset of back pain with left leg radiation in January 2005.  He was diagnosed with disc disease and underwent surgery (L4/5 discectomy/laminectomy) on 9 August 2005.  With no lasting relief of his symptoms, the CI underwent a second procedure (L4/5 fusion) on 17 January 2006 (6 months prior to separation).  Post-operative STR entries document a favorable course and normal neurological examinations (5/5 strength).  The neurosurgeon’s note 3 months after surgery documented, “He is doing well.  He complains of stiffness.  He is getting some exercise.  His examination is unremarkable, except for some stiffness and tightening of his hamstrings.”  The neurosurgeon’s entry a month later noted that leg pain had resolved, but “certain activities cause him low back pain;” and, the examiner recorded “strength is good” and recommended “physical therapy exercises.”  There was no post-operative STR evidence for severe range of motion (ROM) limitations, and there was no documentation of physician directed bed rest or quarters assignment.  Although the CI significantly improved after the fusion surgery, it was not sufficient to allow unrestricted duty and he was referred to an MEB.  The MEB forwarded “status post L4-5 fusion” to the PEB for adjudication.

The MEB NARSUM examination on 13 June 2006, 2 months before separation, documented “complaints of [intermittent] stiffness and leg pain that is ... decreased significantly in comparison to his preoperative symptoms” interfering with some daily activities such as “lacing his shoes and putting on his socks.”  The examination was confined to ROM measurements of flexion to 45 degrees (normal 90), extension to 20 degrees (normal 30) and bilateral flexion to 20 degrees (normal 30).  Formal ROM measurements for the MEB were performed by physical therapy 9 days later and were recorded as average flexion to 30 degrees with a combined ROM of 125 degrees (normal 240).  The commander’s performance statement documented that the CI was continuing to work as a shop foreman and did not reference any medical work loss.  There was a temporally probative entry from a civilian orthopedist dated 19 September 2006, 7 weeks after separation.  This noted continuing improvement following surgery with pain rated 3/10 at that time.  The examination recorded “a lot of pain with lumbar flexion ... unable to flex forward and touch his toes,” without clarifying the extent of flexion demonstrated.  Neurological findings were 5/5 strength in all motor groups with intact sensation.

The VA Compensation and Pension (C&P) examination on 12 December 2006, performed 4 months after separation, documented constant pain rated 8/10 radiating down the left leg and “elicited by physical activity.”  The CI reported incapacitating episodes totaling 352 days, stating that his physician recommended bed rest for 16 months.  The latter was referenced as the neurosurgeon whose post-operative notes are elaborated above.  The examination recorded a normal gait, the absence of spasm or tenderness, and normal neurological findings (strength, sensory, and reflexes).  The examiner opined that there were no signs of a disc syndrome or nerve root involvement.  The ROM measurements were flexion to 50 degrees and combined 180 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under code 5241 (spinal fusion), citing pain limited motion, with implied application of Army Regulation (AR) 635-40 (B-29, e).  The VA assigned a 20% rating under the same code based on the C&P evidence, citing forward flexion greater than 30 degrees but not greater than 60 degrees.  No reference was made to incapacitating episodes.  Members agreed that a minimum 20% rating was supported by all of the ROM evidence.  There were two arguments for a higher rating deliberated by the Board.  Firstly, the MEB PT flexion of 30 degrees is the VASRD §4.71a threshold for a 40% rating.  The probative value of this single data point, however, was mitigated greatly by all competing ROM evidence; e.g., the outpatient STR, the NARSUM, the post-separation provider note, and the C&P ROM measurements.  Members thus agreed that the MEB PT ROM evidence was fairly characterized as an outlier and insufficient as the sole basis for a 40% recommendation.  Secondly, the duration of incapacitating episodes reported at the C&P examination is consistent with a 60% rating under the alternate §4.71a formula for rating intervertebral disc syndrome.  It was, however, difficult to reconcile the C&P report with all of the remaining evidence; e.g., the referenced provider’s own clinical notes, and the absence of any corroboration in the STR or by the commander of such extended work loss from the back condition.  Additionally it was noted that the requisite diagnosis of intervertebral disc syndrome was disputable at the time of separation and that the VA did not find support for rating on this basis.  Members thus agreed that a higher rating recommendation premised on incapacitating episodes was insufficiently supported by the evidence.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to the LLE radiculopathy.  The Board requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; and, there was no objective evidence of either motor or sensory deficits.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the Board could not support a recommendation for Service rating on this basis.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the chronic radiating low back pain condition under code 5241.

BOARD FINDINGS:  In the matter of the back 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.  The Board recommended that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Radiating Low Back Pain	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140307, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160008291 (PD201401390)

1. 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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization of the individual's separation. This decision is final.

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.

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:

CF:
( ) DoD PDBR
( ) DVA