RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-02150
BRANCH OF SERVICE:  Army	    SEPARATION DATE:  20030322 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, O3, Aviation Pilot, medically separated for “chronic back pain…,” with a disability rating of 10%.  

CI CONTENTION:  The CI elaborated no specific contention in his application.  The 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 - 20021212	VARD - 20080302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain ...	5299-5295	10%	Herniated Nucleus Pulposus, Lumbar Spine, L5-S1,with Disc
Space Narrowing Status Post Discectomy	5293-5292	10%	20030508	
			Left Leg Radiculopathy	5293-8720	10%	20030508	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:    

Chronic Back Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a 1997 (cadet training) onset of back pain with left lower extremity (LLE) radiation.  Magnetic resonance imaging (MRI) at that time demonstrated left “lateral HNP [herniated nucleus pulposus] L5/S1” and neurological findings were normal.  There are no available subsequent STR entries until the condition was exacerbated by a parachute landing in April 2001.  Back pain with LLE radiation did not resolve; a repeat MRI demonstrated left L5/S1 nerve compression; and, the CI underwent surgery (L5/S1 discectomy/laminectomy) on 12 October 2001 (17 months prior to separation).  Clinical results were unsatisfactory, although a follow-up MRI showed “significant decompression of the nerve root.”  Surgical fusion was considered and reasonably declined and an MEB was initiated.  There was post-operative STR documentation of grossly normal range of motion (ROM) with no contrary entries.  A neurological examination 4 months post-operative documented a distal left L5/S1 sensory deficit with 4+/5 plantar flexion.  All subsequent neurological examinations were normal with 5/5 strength in all groups, normal reflexes, and normal sensory findings.  There was no STR documentation of incapacitating episodes after surgical recovery.   

The PEB’s DA Form 199 rating rationale referenced ROM from the MEB’s DD Form 2808 medical examination of 11 June 2002 (9 months prior to separation).  This examiner (different provider than for NARSUM) noted flexion to “10 inches from floor” (~80 degrees) and extension “limited to 15-20 degrees.”  The neurologic findings were “no sensory deficits ... trace motor weakness [left] hip extension [charted 4+/5].”  The NARSUM (neurosurgeon) was conducted in September 2002 (7 months prior to separation) and documented “daily severe intermittent pain” rendering the CI “unable to stand greater than 30 minutes or sit for greater than an hour....”  The examiner noted LLE radiation but did not document contemporary subjective weakness or sensory symptoms.  The NARSUM physical examination did not comment on spasm, other findings or ROM; but, detailed neurological findings.  These included a normal gait, normal sensory findings, and normal reflexes.  Bilateral lower extremity motor strength was rated as 5/5 in all groups except for left “dorsiflexion and extensor hallucis longus” (L5/S1 nerve root) which was rated 4/5.

A VA Compensation and Pension (C&P) examination was conducted in May 2003 (6 weeks after separation) and documented constant back pain radiating to the LLE, listing functional impairments of “prolonged sitting and especially after extended driving.”  The examiner also specified the absence of any incapacitation.  The VA physical examination recorded a normal gait and posture, the absence of spasm or tenderness, and normal neurological findings (motor, sensory, and reflexes).  The VA measured ROM was flexion to 70 degrees (normal 90) and combined 220 degrees (normal 240).

The Board directed attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine
The PEB’s 10% rating analogous to 5295 cited “pain with motion” satisfying that criterion, and criteria for the higher ratings were not in evidence.  The VA rating under criteria of 5292 for limitation of motion was also reasonable given the modest reduction in flexion reported by the VA examiner; and, all members agreed that a recommendation for a higher rating under 5292 could not be justified by any of the ROM evidence.  Code 5293 for disc syndrome rated 10% could be supported, but there were no “recurring attacks” or incapacitation to achieve a higher rating.  Therefore, rating under either 5292 or 5293 is not advantageous over the PEB’s code and rating.  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 of the lumbar spine condition.

The Board then considered whether additional Service rating could be recommended, as conferred by the VA, for the associated left sciatic radiculopathy in evidence.  The PEB’s determination indicated that the neurologic impairment was considered in its rating.  The VA rating for LLE radiculopathy referenced only “continued complaints of left leg pain radiating from your lumbar spine.”  The Board required a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service disability in spine cases.  There was evidence of minor sensory and mild motor impairment; but, this was inconsistent, often undetectable, and not present at the VA examination which is the evidence most proximate to the date of separation.  Members thus agreed that there was insufficient evidence for significant additional functional impairment from the radiculopathy; thus, the Board cannot support a recommendation for additional Service disability rating on this basis.  

BOARD FINDINGS:  In the matter of the lumbar disc condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  With regard to the radiculopathy associated with the unfitting lumbar spine condition, the Board unanimously agrees that it cannot recommend it for additional Service disability rating.  There were no other conditions within the Board’s scope of review for consideration.  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 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
SAMR-RB

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX, AR20160007114 (PD201402150)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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:

Enclosure

CF:
( ) DoD PDBR
( ) DVA