RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01618
BRANCH OF SERVICE:  Army	BOARD DATE:  20140819
SEPARATION DATE:  20071124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13D10/Field Artillery/Fire Direction Support Specialist) medically separated for a chronic low back pain (LBP) condition.  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3(S1) profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “radicular lumbar low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB adjudicated “chronic low back pain with L5/S1 herniated disc with chronic right L5 radiculopathy” as unfitting, rated 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Two herniated disk in lower back.  Disk L5-S1 + L4-L5.  Both are buldged.  I qualified for surgery but the Army would do it because I was too young.  At the time I was 31 years old.  I’ve had the injury for 7 years ago.”

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 those conditions identified but not determined to be unfitting by the PEB, when specifically requested by the applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  Additionally, the Board considers DVA evidence proximate to separation in arriving at its recommendations and, DoDI 6040.44 prescribes a 12-month interval for special consideration of post-separation evidence, which is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20070829	VA - (3.25 and 9.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain w/ L5-S1 Herniated Disc w/Chronic Right L5 Radiculopathy	5243	10%	Intervertebral Disc Syndrome	5243	20%	20080303	
			Paralysis of the Right Sciatic Nerve Associated with Intervertebral Disc Syndrome	5243-8520	10%	20080303	
Other x0 (Not in Scope)	PTSD	9411	30%	20080903	
	Other x3	
Rating:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080723 and 20080922 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that “I qualified for surgery but the Army would [wouldn’t] do it because I was too young.”  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  

Low Back Pain with L5-S1 Herniated Disc and Chronic Right L5 Radiculopathy.  The CI’s back pain began in mid-2006 when he noted pain after performing leg lifts during physical training and performing buddy carries sometime later.  He was evaluated then given injectable non-steroidal anti-inflammatory medication and a muscle relaxer.  A plain film X-ray of the lumbar spine was ordered, however, the results were not available for review.  The CI did not respond to chiropractic care or treatment by physical therapy (PT) and he was referred to orthopedics with complaints of sharp pain that radiated to the lateral low back and hip on the right side.  A magnetic resonance imaging (MRI) study was performed and revealed “minimal retrolisthesis in appearance of L5 on S1 without spondylolysis; minimal mid-line disc herniation in L5-S 1, but contained in the epidural space; relatively mild bilateral L5-S1 neural foraminal narrowing.  The spinal canal is patent in all visualized levels.  Overall, mild degenerative changes as described.”  The CI then underwent three epidural steroid injections that did not relieve his pain.  A nerve conduction study was performed and documented a chronic, right-sided L5 radiculopathy.  All service treatment records that contained an assessment of strength documented “normal” or “symmetric” strength.  The narrative summary (NARSUM) prepared 4 months prior to separation, noted continued low back pain with right radicular symptoms in spite of the treatment summarized above.  It also contained the following entry:

“On June 5, 2007 the SM saw the Orthopedic Surgeon.  Impression: ‘Chronic low back pain and R lower extremity radicular symptoms likely secondary to some degree from foraminal narrowing at the L5-S1 to the right side.  Recommendations: Given the appearance of his MRI and clinical picture, I am hesitant to recommend surgery despite the positive nerve conduction studies at this time.  In my opinion surgical intervention such as foraminal decompression would have a relatively high rate of failure given the appearance of the MRI.  He does remain an operative candidate, but I would recommend physical therapy perhaps from a different angle.  I talked to him about the different physical therapy and he may try the spine center and see how he does with that.’” 

The pertinent physical exam findings are in the chart below.  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported LBP for the past 18 months.  The pain occurred three times per day and each time lasted for 6 hours.  The pain traveled down both legs, right greater than left; it was burning, aching, oppressing and sharp at an intensity of 5/10.  The pain was elicited by physical activity and stress, and relieved by rest and medications.  There was no incapacitation and he denied bowel or bladder dysfunction.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below:

Thoracolumbar ROM (Degrees)	PT/MEB ~5.5 Mo. Pre-Sep	VA C&P ~ 3.25 Mo. Post-Sep	
Flexion (90 Normal)	80	50	
Combined (240)	210	180	
Comment	Pos. painful motion & tenderness; No muscle spasm or abnormal spinal contour; Normal gait	Normal gait & posture; No radiating pain on movement; No muscle spasm; Pos. tenderness; Pos. straight leg raise on the right, neg. on the left; Normal sensory; mild right leg weakness; reflexes symmetric; Pos. Deluca criteria	
§4.71a Rating	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the LBP with chronic right radiculopathy leg condition as 5243, intervertebral disc syndrome, and rated it 10% citing VASRD rating criteria.  The VA also applied code 5243 but rated it 20%.  To account for the radiculopathy, the VA also applied the combination code of 5243-8520, paralysis of the sciatic nerve, and coded it 10% for “mild.”  Code 5243 is evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation.  There is no adequate documentation to use incapacitating episodes as the rating criteria; therefore, the general rating formula for diseases and injuries of the spine will be used.  This formula considers the CI’s pain symptoms “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.”  Additionally, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  There was no motor impairment present.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  The pre-separation ROM measurements utilized by the PEB for its adjudication met VASRD requirements IAW VASRD §4.46, accurate measurement and the PEB appropriately applied the general rating formula for diseases and injuries of the spine.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP with chronic right radiculopathy condition was appropriate.

Contended Mental Health Condition.  The Board reviewed the evidence for any indication that a MH condition existed at the time of separation and if so, to render a rating recommendation if that condition was adjudged to be unfitting at the time of separation.  No MH condition was noted on the following Disability Evaluation System (DES) documents (MEB/PEB documents, serial profile, commander’s statement, NARSUM or DD Form 2808).  The CI did not appear to meet inclusion criteria of the Terms of Reference of the Mental Health Review project.  The only DES document that contained an MH-related entry was the DD Form 2807, where the CI noted he got depressed because of his back.  There were no service treatment record entries related to any MH condition.  The Board did review a Post-Deployment Health Reassessment (PDHRA) form completed by the CI upon his return from deployment a year prior to separation.  Although that PDHRA form did contain several positives responses related to MH concerns/symptoms, there were no subsequent entries or indication that he was evaluated or treated for an MH condition while in service.  The evidence did contain a VA C&P examination accomplished almost 2 years after separation where the examiner diagnosed PTSD and assigned a Global Assessment of Functioning of 70, indicating some mild symptoms or some difficulty in social, occupational or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships.  Additionally, the Board reviewed the C&P exam and members agreed that the CI did not meet diagnostic Criteria A for PTSD.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend that an unfitting MH condition existed prior to separation and so no additional disability rating is recommended.  

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.  In the matter of the LBP with L5-S1 herniated disc and chronic right L5 radiculopathy condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH condition, the Board unanimously recommends that an unfitting MH condition did not exist and therefore, it cannot recommend an additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140324, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXX, AR20140019628 (PD201401618)

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:

Encl						    XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA