RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01462
BRANCH OF SERVICE:  Army	BOARD DATE:  20150220
SEPARATION DATE:  20060510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Air Traffic Controller Operator) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “chronic low back pain status post L5-S1 discectomy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain status post L5-S1 discectomy without neurologic or electrodiagnostic abnormality” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “VA disability rating of 70%; herniated disc @L4/S1, separate evaluation for right lower extremity radiculopathy associated with herniated disc.  All MEB/PEB conditions for being unfit for duty and rated Herniated disc @ L4/S1 level 60%___Seperite (sic) evaluation for right lower extremity radiculopathy 20% associated with herniated disc @ L5/S1 level”  

His 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/Naval 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 IPEB – Dated 20060331	VA - (> 6 Years Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain status post (S/P) L5-S1 Discectomy w/o Neurologic or Electrodiagnostic Abnormality 	5243	0%	Herniated Disc at L4/S1	5243	60%	20120205	
			RLE Radiculopathy 	8520	20%	20120205	
Other x 0 (Not in Scope)	Other x 3		
Rating:  0%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20131002 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Pain S/P L5-S1 Discectomy w/o Neurologic or Electrodiagnostic Abnormality.  A clinic note dated 11 December 2003 indicated the CI had lumbar pain for 48 hours after hearing a pop while doing sit-ups; however, the pain did not radiate below the buttocks.  Flexion was to one foot above the ground and extension was 50 degrees; the neurological evaluation was normal; and an X-ray series of the lumbar spine dated 11 December 2003 was unremarkable.  Treatment consisted of a nonsteroidal anti-inflammatory medication and muscle relaxant; and physical therapy was prescribed.  Within 3 days it was “better.”  Upper back pain and spasm occurred after performing sit-ups several months later, was associated with a tingling sensation of the feet, and was treated with a different nonsteroidal anti-inflammatory medication.  A note dated 19 May 2004 indicated the CI had intermittent lumbar pain for 2 years with left-sided radiculitis in a sciatic pattern down to the ankle without weakness, spasticity, or bowel/bladder dysfunction, and a left chest paresthesia (tingling sensation).  Paraspinal tenderness was noted at L5-S1 and neurological examination was unremarkable.  A CT scan dated 10 June 2004 revealed a posteriorly protruding L5-S1 disc touched and slightly displaced the left traversing S1 root; and a chest CT scan was unremarkable.  A neurosurgeon evaluated the CI’s radiating pain down the left leg and confirmed the herniated disc at L5-S1 on 21 June 2004.  At a follow-up with the Neurosurgeon on 10 September 2004, a left S1 discectomy was discussed for the continued pain radiating down the left leg.  The surgery was performed on 16 September 2004.  The post-operative course was marked initially by mild back stiffness.  However, lower back pain recurred after physical and military training.  X-rays of the spine dated 11 July 2005 reversed spondylolisthesis (slippage) of L5-S1 with mild degenerative changes of the L/S spine, while a magnetic resonance imaging of the spine dated 20 July 2005 minimal epidural fibrosis s/p laminectomy without evidence of a recurrent herniated nucleus pulposus (protruding disc).  Oral steroid medication and a referral to physical therapy were prescribed for the post-operative pain thought to be related to adhesions (scarring).  Improvement was noted when the CI was on the steroid for 5 days, but a shooting pain down the left leg and S-1 numbness persisted.  Physical therapy evaluated the CI on 22 September 2005 for the continued back after surgery a year earlier.  Flexion was decreased to 15 degrees with pain; and other ranges-of-motion (ROM) were full.  At a neurosurgical visit on 3 October 2005, there was a full ROM and no signs of radiculopathy.  There was no electro-diagnostic evidence of a left sided lumbar radiculopathy.  An examination on 10 February 2006 revealed flexion 80 degrees limited by pain and extension 25 degrees measured with an inclinometer with a normal gait and normal reflexes reported very frequent radicular symptoms of pain and tingling down the left leg to the mid-calf.

The MEB narrative summary dated 31 January 2006 noted the CI began to have symptoms in November 2003 when he was doing lower back stretches.  Medication, rest, and physical therapy improved his symptoms initially, which then worsened with activities.  An L5-S1 discectomy was performed, but there was little improvement post surgery in spite of physical therapy and a nonsteroidal anti-inflammatory medication.  Pain and tingling goes down the leg to the mid-calf, but there was no electrophysiologic evidence of radiculopathy.  Physical examination revealed a normal gait.  The operative site scar in the lumbar area was well healed.  There was no tenderness of the lower back or paraspinal muscles and a positive straight leg raise on the left (indicating nerve root irritation).  Muscle strength was normal and neurologic examination was unremarkable.  Forward flexion was 80 degrees, extension 25 degrees, left lateral flexion 45 degrees, right lateral flexion 50 degrees, right lateral rotation 53 degrees, and left lateral rotation 48 degrees.  The ROM was limited by pain.  No further surgeries were recommended.  His condition was chronic and stable, but he was unable to carry out the physical aspects of his military duties or physical training.  A permanent L3 profile for L5-S1 degenerative disc disease post discectomy was issued on 3 February 2003 with limitation of functional military activities and specifically no running, jumping or marching and no Army fiscal fitness testing.  

The commander’s statement dated 7 February 2006 indicated the CI had “been able to perform duties assigned to him within the limits of his profile and has been receiving medical treatment since [his] arrival. He has been unable to perform his MOS . . . due to his medical condition.”  At the MEB examination dated 7 February 2006, the CI reported hospitalization for surgery on 16 August 2004 with “no relief of pain down leg.  Tingling sensation left leg.”  “Pain shooting down left leg when walking/extended forward.”  The MEB physical examiner noted a negative straight leg raise (SLR) (to determine nerve root irritation) test to 60 degrees on the right and a positive SLR at 35 degrees on the left and chronic lower back pain (S/P op L5-S1 diskectomy Aug 04.”  Two temporally remote (almost 79 months and 81 months respectively) VA Compensation and Pension examinations were reviewed; however, they offered very limited or no probative post-separation evidence of any significant value.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5243 (intervertebral disc syndrome) for chronic back pain status post L5-S1 discectomy without neurologic electrodiagnostic abnormality and “thoracolumbar combined range of motion greater than 240 degrees.”  The PEB used ROM measurements that exceeded the VASRD upper limits for rating.  Therefore, the correct combined ROM is actually 225 degrees, which is rated 10% as would be the CI’s limited flexion of 80 degrees.  The record addressed pain on motion in the absence of muscle spasm, but the CI is qualified for the minimal rating based on the aforementioned measurements IAW VASRD §4.59.  Additionally, there was not a report of limitation of motion on repetition (DeLuca v. Brown).  Almost 7 years after separation the VA assigned a 60% rating using code 5243 (based on incapacitating episodes of at least 6 weeks during the past 12 months) for a herniated disc at L4/S1 level and 20% using code 8520 (sciatic nerve paralysis) for right lower extremity radiculopathy associated with herniated disc at L4/S1 level.  The rating based on remote examinations of more than 6 years after separation affording no probative value, but the CI’s rated condition was of acute onset and based on disc extrusion of L5-S1 on the on the right side causing the radiculopathy rather than the left side disc extrusion and the subsequent surgery and course thereafter, which were the bases for the CI’s separation from the service.  The Board was unable to find a route to a higher rating at the time of separation in the absence of incapacitating episodes.  The Board must establish a functional impairment linked to fitness in order to recommend separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  Therefore, the Board concluded that the radiculopathy could not be recommended for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the back pain condition.

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 back condition was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5243 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Back Pain	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140326, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150010995 (PD201401462)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization 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:

Encl		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA