RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02072
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Cavalry Scout, medically separated for “chronic low back pain” and “left lower extremity radiculopathy,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “Please consider all conditions.”  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 - 20051227	VARD - 20060808	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Degenerative Disc Disease	5243	10%	20060306	
Left Lower Extremity Radiculopathy	8520	10%	Left Lower Extremity Radiculopathy	8520	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back condition began in May 2005 after falling while carrying another soldier.  Radiographic imaging in July 2005, 6 months pre-separation, documented disc herniation at the L5-S1 level with narrowing of the nerve canal on the left.  At a physical therapy visit in August 2005, 5 months pre-separation, the CI reported intermittent paresthesias to the bilateral feet and changes in bowel and bladder function.  Immediate referral to orthopedic surgery was made and a surgery (L5-S1 partial discectomy) was performed on 22 August 2005.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “degenerative disk disease L5-S1” for PEB adjudication.  On the MEB DD Form 2697, dated 16 September 2005, 4 months pre-separation, the CI reported constant back pain; left lower extremity paresthesias, pain and tightness; and change in bowel habits.  At the MEB examination, recorded on DD Forms 2807 and 2808, the CI reported that the pain caused trouble sleeping and was aggravated by bending, prolonged standing, sitting, and walking.  The examiner documented tenderness of the lumbosacral spine, and decreased range of motion (ROM) with pain.  There was left leg weakness, decreased sensation of the left foot and lateral leg, normal reflexes, pain on straight leg raise that radiated to the left foot, a limping gait, and inability to toe walk.  At a physical therapy visit that same day, the examiner documented flexion of 50 degrees (normal 90), extension to 15 degrees (normal 30), and decreased bilateral flexion (left 20 degrees and right 25 degrees; normal 30), and normal bilateral rotation.  There was no documentation of more significant ROM measurements and no STR documentation of physician-prescribed bedrest except for the post-surgical rehabilitation.  

The MEB NARSUM examination was performed on 4 October 2005, 3 months pre-separation.  The CI reported increased back and occasional leg pain, with continued leg weakness and numbness since the surgery.  The examiner documented weakness of the left lower extremity, trace left ankle reflex, and decreased sensation in the L5-S1 distribution.  

At the VA Compensation and Pension (C&P) examination, dated 6 March 2006, 2 months post-separation, the CI reported continued daily 7/10 back pain, radicular symptoms (constant left posterior calf ache), left foot numbness, with post-operative improvement in his foot drop.  He denied falls, bowel or bladder symptoms, sexual dysfunction, and denied difficulty with performing routine activities of daily living (bathing, dressing, etc.).  He had difficulty rising from a chair, and used a walker at home, but denied using any ambulatory devices outside of the home.  Sitting, standing, and walking were limited by back pain.  The examiner documented flexion to 60 degrees, extension to 20 degrees, left lateral flexion of 20 degrees with normal right lateral flexion and bilateral rotation.  All movements were accompanied by pain; however, there were no further decrements after repetition.  There was 4/5 strength of the left foot dorsiflexors and thigh and decreased sensation of the foot.  Nerve tension testing caused low back pain and was negative for radiculopathy.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 10% rating analogously coded 5299-5242 (degenerative arthritis of the spine), citing range of motion limited by pain.  The VA initially assigned a 10% rating to the back condition coded 5243 (intervertebral disc syndrome), based on the post-separation VA C&P examination dated 6 March 2006.  The VA then revised the rating for the back condition (dated 8 September 2010) to 20% citing “clear and unmistakable error” and assigned the rating retroactive to the date of separation.  

There was pre-separation documentation of flexion of the thoracolumbar spine to 50 degrees (physical therapy September 2005) and an abnormal gait that would support a 20% rating coded 5241 (spinal fusion).  There was no documentation of forward flexion to 30 degrees or less and no evidence of unfavorable ankylosis in support of a higher rating.  The post-separation examination also documented a flexion of 60 degrees that did not worsen with repetition that also supported a 20% rating.  Although the VA initially rated under the code for intervertebral disc syndrome, there was no STR evidence of physician prescribed bedrest for incapacitating episodes in support of a rating higher than 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition, coded 5241 (spinal fusion).  

The PEB also assigned a 10% rating for the radiculopathy coded 8520 (sciatic nerve, incomplete paralysis, mild), citing “residual lower extremity weakness.”  The VA also assigned a 10% rating coded 8520 based on the VA C&P examination 2 months post-separation, citing “incomplete paralysis below the knee, which is mild.”  

VASRD §4.124a states that “incomplete paralysis” indicates a degree of lost or impaired function “substantially less than” the type pictured for complete paralysis.  “When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.”  A moderate degree of paralysis would confer a 20% rating, while mild would be rated 10%.  Member consensus was that a fair threshold for the moderate rating should entail functionally significant motor and/or sensory impairment encroaching on some occupational tasks.  When objective evidence of weakness is available, consideration of the incomplete moderate or a higher rating should be considered.  Radiating pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”   

The CI had a herniated disc with radicular pain causing foot drop, and bowel and bladder symptoms for which he underwent urgent surgery in August 2005.  Post-operatively, and prior to separation, there was documentation of sensory disturbances with an initial weakness (3/5 strength) of the lower extremity that improved prior to separation (to 4/5).  At the post-separation VA examination, there was continued sensory disturbance; however, there was improvement in the weakness, specifically, improved foot drop, 4/5 weakness on examination, no history of falls, and use of assistive devices only when getting up from a chair and not when out of the home.  The post-separation weakness did not interfere with activities of daily living, but did interfere with employment as a dairy farmer and other outdoor activities, and he was unemployed at the time of the C&P examination.  In consideration of these factors and the severity of symptoms and disability in evidence, members agreed that the condition more nearly approximated an “incomplete mild” paralysis and a 10% rating was appropriately recommended in this case.  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 adjudication for the left lower extremity radiculopathy condition.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the left lower extremity radiculopathy condition and IAW VASRD §4.124a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent recommended a higher rating and did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  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	
Chronic Low Back Pain 	5241	20%	
Left Lower Extremity Radiculopathy	8520	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, with attachments
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, AR20160010888 (PD201402072)

1. Under the authority of Title 1 o, 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 lin~ above to recharacterize 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