RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02162
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Automated Logistic Specialist, medically separated for “chronic radiating low back pain,” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  The applicant’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 – 20041004	VARD – 20050509	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain...	5237	10%	Degenerative Disc Disease Lumbosacral Spine with Left Leg Radiculopathy	5243	20%	20050120	
Chronic Left Ankle Pain and Instability…	Not Unfitting	Status Post Open Reduction Internal Fixation Left Ankle	5271	0%	20050120	
Major Depression	Not Unfitting	Major Depressive Disorder	9434	10%	20050105	
Borderline High Blood Pressure	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in July 2003 after heavy lifting.  Magnetic resonance imaging studies March 2004 showed herniated nucleus pulposus at L5-S1.  Electrodiagnostic studies (EMG/NCV), 23 March 2004, were negative for radiculopathy.  Evaluation by neurosurgery concluded with a diagnosis of left lateral L5-S1 disc protrusion and recommended non-surgical treatment.  At the time of the neurosurgery examination on 22 March 2004, 10 months prior to separation, the CI reported that his back pain radiated “to the left buttock and leg…down the posterior aspect to the left heel.”  On examination the CI had a “positive straight leg raise sign on the left mildly.”  There was no dysfunction with gait or coordination and he had normal motor strength and reflexes.  At the time of the primary care clinic (PCC) clinic appointment on 19 May 2004, 8 months prior to separation, the CI reported that his back pain radiated “into left buttock and down left leg.… He [couldn’t] sit for long nor stand in one position for long.… He [was] unable to run or lift objects over 20 pounds.”  The examiner noted that he appeared “uncomfortable and [had] difficulty sitting in one position.”  On examination the CI had tenderness to palpation of the paraspinal lumbosacral muscles, decreased movement and a positive straight leg raise on the left with radiculopathy.  The exam was silent on gait, strength, sensation, and reflexes.  

Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic lower back pain due to herniated nucleus pulposus (ruptured disk) with left lower extremity pain,” for PEB adjudication.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 4 June 2004, 8 months prior to separation, the examiner recorded that the CI had left leg numbness with certain activities and “trouble sleeping because of back pain.”  Physical exam showed that the CI had an “inability to flex spine greater than 20 – 40 degrees without pain.”  The CI had tenderness to palpation of the paraspinal lumbosacral muscles.  During straight leg testing, the CI verbalized severe low back pain, but there were no paresthesias.  His heel-toe walk was intact.  At the time of the physical therapy ROM examination on 21 June 2004, 7 months prior to separation, the CI had pain limited motion in all planes (see chart above).  The exam contained no other relevant findings in regards to his back condition.  

At the VA Compensation and Pension (C&P) examination on 20 January 2005, 2 days prior to separation, the CI reported that “pain [radiated] down his left leg.”  He also reported that “repetitive motion and flare ups [caused] his low back to go to 0 in all directions as far as the range of motion and the repetitive motion [decreased] his range of motion by 10 degrees in all directions.”  Physical exam showed the CI had decreased movement (see chart), normal gait, and normal sensation, and reflexes.  Straight leg testing on the left was positive at 70 degrees and he had pain radiating down his left leg.  The examiner noted that “five repetitions of ROM [did] not cause fatigue, weakness or lack of endurance.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5237 (lumbosacral strain), citing ROM limited by pain and rated for paraspinal tenderness.  This was likely application of AR 635-40, in effect at the time.  The VA rated the back condition 20% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 2 days before separation, citing that “although evaluation findings do not warrant the evaluation of 20 percent, functional loss due to reduced range of motion and pain has been considered and is incorporated in [the] evaluation.”  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees reported on the primary care, physical therapy and VA examinations.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  There was no evidence of lumbar nerve root involvement by electro-diagnostic studies or neurologic examination.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the back condition, coded 5237.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left ankle pain and instability, major depression and high blood pressure conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.    Only the ankle condition (part of L3 profile) and depression disorder (S2) were profiled as requiring some activity limitations, and only the ankle condition was implicated in the commander’s statement.  All of the conditions were judged to meet retention standards.  All were reviewed and considered by the Board.  

The left ankle condition was due to an injury in 2001 and was referred from the MEB as “chronic left ankle pain and instability, status post fracture with open reduction, internal fixation of the ankle and proximal fibula.”  The CI had chronic left ankle pain and was undergoing physical therapy (PT).  At the PT assessment in June 2004 (nearly 3 years after injury; 7 months prior to separation), the CI had a normal gait and normal heel-toe walk with mild decreased strength (4+/5) and was “functionally doing well” for his ankle condition.  The ankle profile had been LT2 until after the back condition was added to the profile which was then changed to an L3.  The course of PT for the ankle was limited due to the CI’s unfitting back condition.  

The major depressive disorder was described as “currently much improved and in remission” in the NARSUM addendum.  

Per the NARSUM, the blood pressure was normal during a 5-day blood pressure check and records did not demonstrate any sequelae of hypertension.  

There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left ankle, major depression, and high blood pressure conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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, effective as of the date of the prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Radiating Low Back Pain...	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160007478  PD-2014-02162

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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization 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:

CF:
( ) DoD PDBR
( ) DVA