RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02193
BRANCH OF SERVICE:  AIR FORCE		SEPARATION DATE:  20050624

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Mid-East Cryptologic Linguist, Arabic, medically separated for “chronic left lower extremity radiculopathy status post L4-L5 foraminectomy for spinal stenosis,” with a disability rating of 20%.   

CI CONTENTION:  The CI contends the disability rating for his back condition and associated radiculopathy should have been higher, that after separation this condition required implantation of a spinal stimulator for pain and that his level of depression is higher as shown in his VA records.  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 - 20050317	VARD - 20060418	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Lower Extremity Radiculopathy Status Post L4-L5 Foraminectomy for Spinal Stenosis	5238	20%	Degenerative Disease Lumbar Spine Status Post Foraminotomy and Hemilaminotomy	5238-5243	20%	20060221	
			Radiculopathy Left Lower Extremity	8620	20%	20060221	
Depression	Not Unfitting	Depressive Disorder	9434	30%	20060314	
Chronic Pain Syndrome	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Left Lower Extremity Radiculopathy Status Post L4-L5 Foraminectomy for Spinal Stenosis.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 29 December 2004 indicated the CI noted worsening back pain in 2000 with intermittent burning pain from the left lower back down to the lower leg.  Changing positions initially helped, but pain became constant.  Treatment with physical therapy, medication and epidural injections did not provide relief.  In August 2001 the CI underwent a hemilaminotomy and foraminotomy with a repair of a spinal fluid leak for a left L5 radiculopathy, which was followed by a postoperative incision wound infection that was subsequently treated.  Postoperative physical therapy and Darvocet (propoxyphene, a narcotic, and acetaminophen, a pain reliever) did not alleviate the pain, which was subjectively worse than prior to surgery.  Pain management with a tricyclic (Pamelor-nortriptyline, an antidepressant medication and for nerve pain), NSAIDs (nonsteroidal anti-inflammatory drugs), Neurontin (gabapentin for nerve pain), Topamax (topiramate for nerve pain) Percocet (oxycodone, a narcotic and acetaminophen, a pain reliever), Fentanyl (an opioid/narcotic pain medication), Demerol (meperidine, a narcotic), MS Contin (morphine, a narcotic), lumbosacral selective nerve root blocks with epidural injections in April  2003,  radiofrequency application to the lumbar dorsal root ganglia in May 2003, and muscle relaxer medication did not afford relief.  A spinal cord stimulator was discussed in July 2003.  An MRI in July 2004 demonstrated broad based disk bulges at L3-L4, L4-L5, and L5-S1 with mild bilateral neural foraminal narrowing and no significant central canal narrowing.  An EMG (electromyogram to determine muscle function) was considered and a trial of methadone (a narcotic), Topamax, and salsalate (an NSAID) was instituted in August 2003.  A discogram in August 2003 was normal.  A pain management evaluation in March 2003 noted the CI had a failed back surgery syndrome with radiculopathy and a spinal stimulator was again considered.  An MRI in June 2004 demonstrated mild spinal canal stenosis at L3-4 and L4-5 due to mild disc bulges and congenitally short pedicles.  At the NARSUM examination in December 2004 the CI was in severe discomfort after a 3-hour car ride to the appointment with a pain severity of 7/10 (10 being the worst pain).  There was a surgical scar over the lower lumbar area 2 inches long and herpes zoster (a painful viral skin infection) scars around the left trunk to the umbilicus.  Neurologic evaluation of the left lower extremity demonstrated a 1/4 deep tendon reflex at the ankle and decreased motor strength of 1/5 (great toe) and 3/5 for adduction and abduction at the knee with decreased sensation on the dorsum of the left foot to touch while the right deep tendon reflex (DTR) was 2/4 and right motor strength was 5/5.  An examination in March 2005 revealed active flexion of the lumbosacral spine was decreased and pain was elicited by motion.  Straight leg raises (to determine nerve root irritation) were positive bilaterally.  Sensation was decreased to pain and temperature on the knee and medial leg and there was no motor dysfunction, but there was a small left-sided antalgic gait and reflexes were normal.  In March 2005 the pain management specialist noted the CI suffered from intervertebral disc syndrome and lumbar post-laminectomy syndrome with unrelenting pain in the sciatic nerve distribution that had been refractory to all interventional treatment modalities… [and] “spinal cord stimulation is warranted and clinically indicated.”  In an undated appeal of the FPEB recommendation the CI wrote he “experienced regular and unrelenting pain-associated incapacitating episodes with a total duration of more than four weeks over the past year.”

The commander’s statement dated 10 October 2004 indicated the CI was working in his primary duty position in a limited capacity of no more than 4 hours per day and was unable to sit for longer than 15 minutes at any one time or to deploy.  He continued to miss work because of his condition for medical appointments, physical therapy, and treatment.  A revised temporary P4U2L4S2 profile was issued on 29 December 2004.

At the VA Compensation and Pension (C&P) examination dated 21 February 2006, performed approximately 12 months after separation, the CI reported stiffness and weakness of the lower back and left leg with constant pain (see below) of 7/10 and incapacitating episodes as often as 20 times per month and 3 weeks from work.  On examination the CI’s posture and gait were abnormal favoring the left leg because of the pain.  He limped and used a cane for ambulation.  There were normal curvatures of the spine.  The CI complained of radiating pain on movement at the left leg and muscle spasm at the paralumbar region along with tenderness at the mid lumbar region.  Straight leg raise was positive on the right and negative on the left (which seemed to be reversed from the reported radiculopathy).  The thoracolumbar spine range of motion (ROM) was full with pain on flexion beginning at 45 degrees.  Joint function of the spine was additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance.  There were signs of intervertebral disc syndrome with permanent nerve root involvement as follows:  sensory defects of the left lateral thigh, lateral leg, and foot and motor weakness of left hip adduction and abduction, although there was no bowel, bladder or erectile dysfunction.  An EMG performed in December 2007 indicated chronic left radiculopathy.  

The Board directed its attention to its rating recommendation based on the above evidence.  The FPEB assigned a 20% rating using code 5238 (spinal stenosis) for chronic left lower extremity radiculopathy status post L4-L5 foraminectomy for spinal stenosis.  The VA assigned a 20% rating using code 8620 (sacral nerve neuritis) for radiculopathy left lower extremity and a 20% rating using code 5238-5243 (spinal stenosis-intervertebral disc syndrome) for degenerative disease lumbar spine status post foraminotomy and hemilaminotomy.  The Board sought a route to a higher rating and noted the PEB assigned a 20% rating using code 5238, which is a rating IAW the General Rating Formula for Diseases and Injuries of the Spine; however, the CI had a normal ROM of the thoracolumbar spine, albeit he had an antalgic gait, but did not have an abnormal spinal contour.  However, on the VA examination performed some 12 months after separation, there was a normal ROM with pain beginning at 45 degrees, which would qualify for a 10% rating based on a noncompensable ROM with painful motion.  However, the CI’s main issue was unrelenting pain not responsive to multiple medications and treatment modalities.  Code 8620, since it was unequivocally documented that the pain is related to the sacral nerve, consideration of a 40% rating is not unreasonable since VASRD §4.123 (Neuritis, cranial or peripheral) permits a maximum rating with sciatic nerve involvement, for moderately severe, incomplete paralysis.  In the absence of ankylosis a higher rating than 40% is not a viable option, but at the VA examination the CI reported incapacitating episodes 20 times a month with 3 weeks loss of time from work; however, the CI contended he was out of work more than 4 weeks in his appeal to the FPEB.  Neither the VA nor the service treatment records document prescriptions requiring bed rest prescribed by a physician on such a regular and continuous basis, albeit the CI worked only 4 hours a day.  Even if credence were given to the CI’s missing 3 weeks of work in the absence of credible medical documentation, a rating of 20% is the maximum that is obtainable for the time off from work “with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months,” while his contention of 4 weeks out of work “with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months” would rate 40%, which is the same rating assignable using code 8620.   However, Board members did not feel nor was there sufficient evidence to support a 40% rating in the absence of a significant motor strength deficits, and instead felt that the CI’s primary problem, the radiculopathy, warranted only a 20% rating using code 8520 for a moderate condition.  However, whereas the VA also assigned a rating based on limitation of motion of the spine, neither the PEB nor the majority of Board members deemed an additional rating was not warranted.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the chronic left lower extremity radiculopathy condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic pain syndrome and depression were not unfitting.  The chronic pain syndrome was not explicitly profiled although there were revised temporary P4 and L4 profiles nor was there an explicit profile for depression, but there was a revised temporary S2 profile.  Neither condition was explicitly mentioned in the commander’s statement, although the CI had limited sitting capability; however, no mental health issue was addressed. 

Chronic Pain Syndrome.  For all intents and purposes the chronic pain syndrome diagnosis was related to and a result of the radiculopathy discussed above.  Additionally, the CI also had pain from herpes zoster of the lumbar region around to the umbilicus.  Narcotics including methadone and Percocet were prescribed regularly and a spinal stimulator was discussed on several occasions prior to separation.  Therefore, the chronic pain syndrome was unfitting.

Depression.  The CI was diagnosed with depression January 2003 related to his chronic pain and was placed on Prozac (paroxetine, an antidepressant) with significant mood improvement noted by both him and his spouse.  A note in March 2005 indicated the CI was not feeling restless, had no anxiety, high irritability, hostility, or emotional lability.  Depression was mild as a chronic condition.  The CI was not pessimistic about the future or brooding about the past.  He had small feelings of hopelessness, difficulty falling asleep, middle-night awakening, and decreased functioning ability with a desire for health recovery and no frequent thoughts of death.  Prozac was continued and zolpidem for sleep replaced trazodone (an antidepressant).  At the VA mental health examination the CI had a depressed mood and felt worthless and sad.  He had no delusions, hallucinations, or obsessional rituals and suicidal and homicidal thoughts were absent.  His GAF (General Assessment of Functioning) score was 55 (moderate symptoms).

The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that the depression condition significantly interfered with satisfactory duty performance.  After due deliberation 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 the depression contended condition; and, so no additional disability rating is recommended.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of chronic pain syndrome contended condition favors its recommendation as an unfitting condition for disability rating; however, it is appropriately subsumed under the left lower extremity radiculopathy coded 8620 and meets the VASRD §4.124a and VASRD §4.123 criteria for the 20% rating as noted above and cannot be recommended for an additional disability rating. 

BOARD FINDINGS.  In the matter of the chronic left lower extremity radiculopathy condition, the Board majority recommends a disability rating of 20%, coded 8620 IAW VASRD §4.124a and VASRD §4.123.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended depression condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended chronic pain syndrome condition, the Board unanimously agrees that it cannot recommend it for additional disability rating since it is subsumed under code 8620.  There were no other conditions within the Board’s scope of review for consideration.  Although the Board determined that the VA code 8620 best depicts the CI’s “chronic left lower extremity radiculopathy” condition, this change would offer no practical benefit to the CI, the Board therefore recommends no change the prior the determination

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140326, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-02193.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings 

Minority Opinion.  The function of the Physical Disability Board of Review (PDBR) is to reassess the accuracy and fairness of the combined disability ratings assigned former Service members.  In this instant case, however, the PEB was not completely accurate in either the coding condition or the overall rating of the CI’s condition.  PDBR members noted that the CI’s primary condition was not spinal stenosis, which is for what the PEB coded and rated, but was a radiculopathy and more specifically sciatica.  Board members corrected that oversight by redesignating the code to 8620 versus 5238.  However, code 5238 or another code and a rating is still necessary to appropriately complete the full extent of the CI disability, which included not only the radiculopathy, but also limitations related to his thoracolumbar spine both pre- and post-surgery.  Board members discussed the fact that the CI’s appeals were twice rejected; however, in the Memorandum for HQ AFPC/DPPDS dated 12 May 2005, the PEB was “aware of the disability rating criteria for diseases and injuries of the spine . . . to include either limitations in the range of motion or incapacitating episodes.”  Furthermore, the PEB noted “the service member’s thoracolumbar range of motion was measured at 90 degrees, the Board opined, utilizing this criterion, the member’s back condition does not reach the threshold for the higher disability rating he desires.”  However, at an examination in March 2005 it was clearly noted that lumbosacral spine pain was elicited by motion and at the VA examination, albeit at 12 months post-separation, but nevertheless within the look forward time authorized by DoDI 6040.44, the range of motion was 90 degrees; however pain began at 45 degrees and more importantly IAW DeLuca v. Brown, there was pain present on repetition, thereby warranting a 10% rating using code 5099-5003 for a noncompensable range of motion with objective painful motion.  The problem with the PEB’s analysis and opinion was that its reliance on the range of motion of 90 degrees failed to address painful motion, and to have assumed that silence related to the presence or absence of painful motion is equivalent to no pain, is speculative at the best and is inconsistent with VASRD §4.6 (evaluation of evidence).  Furthermore, to obtain an accurate rating requires repetition of motions IAW with DeLuca v. Brown as well as VASRD §4.45 and those omissions in the replied upon examination precluded the CI from obtaining a rating for the full measure of his disability for not only his spine condition that warranted surgery to ameliorate the spinal stenosis, but also his overall functional loss IAW VASRD §4.40, which was clearly evident by the failure of the surgery and marked by a level of pain that was unresponsive to a myriad of medications including several narcotics as well as a multitude of treatments.   The PEB had ample opportunities to support its position and do the right thing by directing a full and complete spinal examination to address not only the range of motion, but also determine whether there was painful motion.  However, the PEB did not do so, which is in contradistinction to VA examination protocol and military physical therapists, who use templates to record measurements and painful motion as well as other observations.  The PDBR cannot direct a new examination; however, it can carefully review the full record to identify examinations compliant with VASRD and DeLuca guidelines.  As noted previously an examination prior to separation and the VA C&P examination post-separation identified full ROMs with painful motion, either or both examinations offering a 10% rating.  Therefore, IAW VASRD §4.3 (Resolution of reasonable doubt), which states: “When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant,” and IAW with VASRD §4.7 (Higher of two evaluations), which states:  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating,” the CI’s condition of painful motion of the spine and severe, intractable pain warrants the higher combined rating of 30% rather that a 20% rating, which lacks the PDBR imprimatur of “fair and equitable.”    

Therefore, based on the unequivocal facts of this case in compliance with the DoDI 6040.44 and the VASRD, the Minority opinion is that the Board recommendation be as follows:

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	
Chronic Left Lower Extremity Radiculopathy 	8620	20%	
Spinal Stenosis	5238	10%	
RATING	30%