RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01541
BRANCH OF SERVICE:  Army 	DATE OF PLACEMENT ONTO TDRL:  20060401
	DATE OF REMOVAL FROM TDRL:  20070517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Cannon Crewman) medically separated for chronic low back pain.  The 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 “chronic low back pain with intermittent radicular symptoms” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain since 1993, status post L4-S1 fusion” as unfitting, rated 40% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 13 months later, after determining the condition stable, the IPEB adjudicated the chronic low back pain as unfitting, rated 0% with likely application of AR 635-40.  With no appeal, the CI was removed from the TDRL and discharged with severance pay.

CI CONTENTION:  

“Degenerative bone/disc disease, radiating lower left & right extremities.”  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 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:    

Final PEB – 20070503	VA Rating Decision1 - 20061229	
TDRL Placement – 20060331	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Chronic Low Back Pain since 1993, Status Post L4-S1 Fusion	5241	40%	0%	S/P L5-S1 Laminotomy and Diskectomy with Degenerative Changes	5242	20%	20%	
				Radiculopathy, Bilateral Lower Extremities Associated with S/P L5-S1 Laminotomy and Diskectomy with Degenerative Changes	8512	NSC	
Other x 0 (Not in Scope)	Other x 6	
RATING:  40% → 0%	RATING:  30%	
1. Most proximate to TDRL Placement
2. Rating derived from C&P exam dated 20061115, ~8 mos. post-TDRL placement 
3. Rating derived from C&P exam dated 20070208, ~3 mos. pre-TDRL removal 

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.   The earliest note in the service treatment record (STR) dated 22 April 2004 indicated the CI was evaluated by a physiatrist for low back pain that began in 1993 when a 100 pound round of ammunition dropped on his lower back and the pain lasted for several weeks thereafter.  Since January 2004, the CI had minimal right-sided low back pain, which went on to involve the lower back going down to the left leg posteriorly to the calf area with associated intermittent weakness of the left lower leg.  Examination revealed flexion of 70 to 75 degrees with significant pain.  X-rays of the spine revealed mild degenerative joint disease at L4-L5 and L5-S1, while an MRI in March 2004 showed a herniated nucleus pulposus (HNP), which was small and pointed toward the left side of L5-S1 and impinged on the S1 nerve root.  Additionally, there was also a small disc herniation at L4-5.  A series of three epidural steroid injections was recommended.  On 9 July 2004 a left L5-S1 laminotomy (opening in the vertebrae) and a [micro] discectomy were performed.  After twisting while in bed in the postoperative period, the CI developed new symptoms of pain in the lower back and right lower extremity.  A follow-up MRI demonstrated postoperative changes at L5-S1 with a residual midline disc protrusion, which exerted a slight mass effect on the descending right S1 nerve root.  There was also a posterior right paracentral disc protrusion and annular tears at L4-L5 and L5-S1, which resulted in mild central canal stenosis that was stable compared to the prior exam.  The spine surgeon felt that the CI’s back pain was related to the significant underlying degenerative disc bulging with annular tears.  Treatment consisted of ibuprofen (a nonsteroidal anti-inflammatory drug (NSAID)) and Lortab (hydrocodone, a narcotic and acetaminophen, a pain reliever).  Because of continued pain the CI underwent an anterior interbody fusion at L4-5 and L5-S1 on 16 February 2005.  Pain increased in March 2005 and was treated with a Medrol Dosepak (an oral steroid).  By April 2005, the CI had made gradual and steady progress and X-rays showed the operative site and instrumentation were in alignment and intact.  In May 2005 weaning out of the back brace began as the CI prepared to return to light duty.  A consult to the MEB dated 30 September 2005 noted the range-of-motion (ROM) measurements were flexion 30 degrees, distance of the tips of the fingers to the floor 20 cm, extension 10 degrees, side bending 30 degrees bilaterally, and rotation 40 degrees bilaterally.  Neurologic examination was unremarkable.  Palpation produced tenderness at L4-S1 as well as in the sacroiliac region.  The examiner opined he would expect slow improvement of chronic pain syndrome over several years of time and did not expect the CI could ever return to duty.  On 13 October 2005 the CI was a restrained passenger in a motor vehicle accident, was seen in the emergency room, and was treated with Motrin (ibuprofen, an NSAID) and ice to the back for tenderness to palpation along the lumbar spine midline.  

For the MEB examination, the CI reported on DD Form 2807-1 dated 11 October 2005 that the pain started in ’93-’94 and he had back surgery 9 July 2004 and 16 February 2005 with screws, pins and cages in the lower back.  He noted the pain was still the same in the back and legs and he used a back brace for support/pain.   The MEB physical examiner noted on DD Form 2808 dated 11 October 2005 decreased ROMs especially flexion and decreased quadriceps strength bilaterally secondary to back pain.   A permanent L3 profile was issued on 13 October 2005 and approved 8 days later for lumbar spondylosis (arthritic changes of the spine) with limitations of all military functional activities and physical fitness testing.  Additional restrictions included duty limited to 8 hours/day and 5 days/week, no running, no jumping, no stooping, no crawling, no load bearing equipment, no Kevlar, and no riding in tactical vehicles.  The commander’s statement dated 25 October 2005 indicated the CI was physically incapable of reasonably performing his duties as a cannon crewman or meeting its physical requirements.

The MEB narrative summary (NARSUM) dated 8 December 2005 noted the CI complained of low back pain with intermittent shooting pain into the right leg that began in August 1993.  Since that time he underwent two neurosurgical procedures.  Initially, he had no leg or back pain after the anterior interbody fusion, but the symptoms of pain in both areas returned by August 2005.  At the time of the NARSUM examination the CI noted the pain was 5/10 (10 being the worst pain) and was present 24 hours a day, 7 days a week.  Treatment consisted of Percocet (oxycodone, a narcotic and acetaminophen), Ultracet (tramadol, an opioid-like medication and acetaminophen) and Robaxin (methocarbamol, a muscle relaxer).  The CI stated that he had pain going down the right leg every morning or had pain if he stood or sat for a prolonged period; the pain was relieved by squatting several times and a change of position.  X-rays of the lumbar spine in October 2005 showed the results of the fusion and fixation and was otherwise unremarkable.  On examination the CI was able to heel and toe walk normally with normal sensation and strength of the lower extremities.  He had tenderness on the left of L3.  Flexion was to where the fingertips reached the middle of the kneecaps and extension was 0 degrees.  Straight leg raise caused no radicular pain.  The diagnosis was chronic low back pain with intermittent radicular symptoms and the CI could do nothing strenuous without aggravating his back pain.

At the VA Compensation and Pension (C&P) examination dated 15 November 2006, less than 8 months post-separation, the CI related he had muscle weakness, pain, joint stiffness, decreased ROM, and instability to the left leg.  He had no incapacitation in the prior 12 months.  On examination the spine had a normal curvature; his gait was steady and coordinated; and he had no limited motion with walking. The ROMs are in the chart below.  Pain occurred on flexion from 55 to 65 degrees, but there was “no complaint of weakness and fatigue, with lack of endurance with repetitive motion.”  The CI used a cane for stability.  Neurologic evaluation was unremarkable.  X-rays of the lumbosacral spine showed degenerative osteoarthritic changes and status post posterior fusion of the lower lumbosacral spine.

A CT scan of the lumbar spine in March 2007 for back pain radiating to bilateral lower extremities with numbness demonstrated a status post posterior lumbar interbody fusion L4-S1 “without complicating feature.”  At the TDRL evaluation on 16 March 2007, the CI stated his low back pain was constant at 3-4/10 and was made worse by standing or sitting for prolonged periods with pain at 10/10, which was decreased with walking.  He also complained of left leg pain with pain over the entire thigh area.  On examination he had a normal gait and was able to do heel and toe walking.  He had no straight leg raise (to determine nerve root irritation) and the ROM on gross evaluation appeared normal.  Neurologic evaluation was unremarkable except for decreased sensation about the area of the left thigh and decreased symmetric deep tendon reflexes.  The examiner recommended that the CI continue on TDRL an additional year so his condition may stabilize.  Physical therapy measurements in March 2007 of thoracolumbar ROMs are in the chart below with flexion 30 degrees and the combined ROM 145 degrees.  In February 2008 the CI presented to the ER with concerns of worsening pain in the prior 2 months.  Treatment consisted of intramuscular toradol (ketorolac, an NSAID).  At a remote orthopedic examination in March 2009 the CI reported the pain was incapacitating and was predominantly in the area of his instrumentation and legs bilaterally.  The examiner opined that because the CI was thin it was possible that the prominence of the instrumentation was causing muscle irritation.  Subsequently on 6 April 2009, the CI underwent removal of L4-5 and L5-S1 pedicle screws and rod instrumentation.  A postoperative seroma (a collection of clear serous fluid) was resolving by 17 April 2009 and the CI had no pain, numbness, or tingling that radiated into the lower extremities.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Consult to the MEB ~6 Mo. Pre-Sep
	MEB ~3 Mo. Pre-Sep
	VA C&P ~8 Mo. Post-Sep
	PT ~12 Mo. Post-Sep
	
Flexion (90 Normal)	30	(40)45,40,40	65	(30)35,30,30	
Extension (30)	10	(15)15,15,15	20	(5)5,5,5	
R Lat Flexion (30)	30	(15)15,15,15	20	(25)25,25,25	
L Lat Flexion (30)	30	(20)20,20,20	20	(25)25,25,25	
R Rotation (30)	(30)40	(30)40,40,45	20	(30)32,30,30	
L Rotation (30)	(30)40	(30)40,40,45	20	(30)30,30,32	
Combined (240)	160	150	165	145	
Comment	Neurologic exam unremarkable; tenderness L4 to S1 as well as the SI region	Pain at the end range of all motions; lumbar spine tender to palpation; strength lower extremities normal	Pain on flexion 55 to 65 degrees	“Pain more than mechanical”	
§4.71a Rating	PEB 40%	20% 	10% (VA 20%)	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 40% rating using code 5241 (spinal fusion) and indicated TDRL placement was granted for an unstable condition with a forward flexion of 30 degrees.  The VA assigned a 20% rating using code 5242 for S/P L5-S1 laminotomy and diskectomy with degenerative changes and a NSC rating using code 8512 for radiculopathy of the bilateral lower extremities associated with S/P L5/S1 laminotomy and diskectomy with degenerative changes.  The Board sought a route for a higher rating; however, in the absence of ankylosis of the entire thoracolumbar spine, was unable to do so.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.

The Board next noted the PEB assigned a 0% rating using code 5241 for chronic low back pain and was rated for “no mechanical loss of motion” at the time of TDRL removal.  There was no additional VA rating for the back condition, but the VA assigned a 10% rating for each extremity in June 2008 retroactive to 1 April 2006, for episodic radicular pain of the left lower and right lower extremity using code 8520 (Sciatic nerve, mild incomplete paralysis).  The Board sought a route for a higher rating and noted flexion of 30 degrees almost 12 months post-separation.  After a detailed discussion, the Board determined that a 40% rating at TDRL removal was apropos, but there was no route to a higher rating in the absence of ankylosis.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a 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 no change to the 40% disability rating at TDRL placement and a disability rating of 40% for the chronic low back pain condition for TDRL removal.    

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised for TDRL placement; however, as discussed above, PEB reliance on AR 635-40 for rating the lower back pain was likely operant for TDRL removal in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the lower back pain condition, the Board unanimously recommends no change to the previously assigned rating and a disability rating of 40%, coded 5241 IAW VASRD §4.71a at TDRL removal.  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	
		PERMANENT	
Chronic Low Back Pain	5241	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140103, 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 XXXXXXXXXXXXXXXXXX, AR20160003142 (PD201401541)  

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 40% 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 40% 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