RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-02232
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090422

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Automated Logistics Specialist, medically separated for “low back pain” with a disability rating of 20%.

CI CONTENTION:  The CI listed “lumbar disc protrusion at L4L5 and L5-S1, left leg L5-S1 radiculopathy, right leg radiculopathy due to lumbar cond, left varicocele, scars, tonsillitis.”  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 - 20091112	VARD - 20090916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	20%	Lumbar Disc Disease	5243	40%	20090716	
			Left Leg Radiculopathy…	8599-8520	10%	20090716	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Lumbar Spine (subsuming Radiculopathy).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI experienced an atraumatic onset of low back pain in 2007, was diagnosed with disc disease by imaging (L4/5 and L5/S1 with left nerve root involvement), and underwent surgical intervention (microdiscectomy both levels) in March 2008 (13 months prior to separation).  There was initial improvement but later recurrence of back pain and left lower extremity (LLE) radiation with subjective weakness (no sensory symptoms).  Additional surgical intervention was not recommended, further treatment did not result in improvement sufficient to allow unrestricted duty, and the MEB forwarded “low back pain” to the PEB for adjudication.

Various STR entries reported LLE weakness (proximal and distal, not severe) on neurological testing, although this was attributed to pain by some examiners.  Normal motor strength was documented at other times.  There was ample STR documentation of non-specifically decreased range of motion (ROM), although none provided measurements.  None were characterized as severe, although there was frequent mention of antalgic gait and occasional note of stooped posture.  The last probative entry in the outpatient STR prior to the formal ROM evaluations documented a normal gait and spinal contour and the absence of tenderness or spasm without commenting directly on observed ROM.  There was no documentation of incapacitating episodes.

The NARSUM examination on 11 November 2008, performed 6 months prior to separation, documented back pain “70% of the time” and LLE radiation with occasional numbness and “some weakness ... which he feels is related to the pain.”  Specified functional limitations were a half mile walking tolerance and a 45 minute sitting tolerance.  The physical examination recorded a normal gait, but tenderness and spasm with “limited” ROM and painful motion in all planes.  The LLE neurological findings were motor strength “4+/5 with give way in all muscle groups due to pain” and non-dermatomal (“entire LLE”) sensory impairment.  The examiner also documented some indicators of unreliable findings (3/8 Waddell’s, Hoover’s test).  Formal ROM measurements for the MEB were conducted by physical therapy (PT) on 3 December 2008, 5 months before separation, and are charted below.  The PT examiner additionally recorded spasm and guarding associated with a stooped posture and abnormal gait and spinal contour; and, 4/5 LLE weakness “with pain on resistance ... and incoordination due to pain.”

A VA general physical examination was conducted on 19 February 2009, 6 weeks before separation, and the examiner noted that the CI had recently sought legal advice for appealing the PEB rating.  He reported “moderate to severe” pain with LLE radiation and weakness.  The physical examination recorded conflicting entries for gait and spinal contour, without comment regarding tenderness or spasm; and, neurological findings of 4/5 proximal LLE motor strength but with “strong foot dorsiflexion and plantar flexion” (the affected disc levels).  The ROM measurements are charted below.

At the VA Compensation and Pension examination on 16 July 2009, performed 3 months after separation, the CI reported pain rated 6/10 with LLE radiation exacerbated to 9/10 by bending, lifting, and prolonged standing, sitting or walking.  The physical examination recorded an antalgic gait but stated that there was not spasm severe enough to cause abnormal gait or spinal contour.  The LLE neurologic findings were 4/5 motor loss confined to the extensor hallucis longus (L5/S1) and “decreased pinprick...at L4/L5 dermatome.”  The ROM measurements are charted below.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under code 5243 (intervertebral disc syndrome) was consistent with VASRD §4.71a criteria for the Service ROM and ratable findings.  The DA Form 199 decision also detailed the NARSUM neurological findings, indicating that the radiculopathy was subsumed and not subject to additional rating.   The VA’s 40% rating under the same code cited the 20 degree flexion from the pre-separation VA physical examination.  The VA conferred an additional 10% rating for LLE radiculopathy based on the same examination.  There was no evidence in support of higher rating based on incapacitating episodes, and the Board was faced with a disparity between the service and VA ROM evidence with obvious implications for the rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  There were two internally consistent formal ROM evaluations by the VA compared to the single MEB PT evaluation, and the former were more temporally aligned with the date of separation.  Although the outpatient evidence from the STR did not correlate well with the severe ROM limitation reflected by the VA evidence, the former was not specifically quantified; and, the Board was left with the fact that of the three examinations compliant with VASRD §4.46 (accurate measurement), two supported a 40% rating.  Member consensus was, in light of this fact and given the imperative of reasonable doubt, that the VA ROM evidence should be assigned the determinant probative value.  After due deliberation, and in consideration of all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board majority’s recommendation is a 40% rating for the lumbar spine condition under code 5243.

The Board next considered whether additional service rating could be recommended, as conferred by the VA, for the associated LLE radiculopathy.  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.  The pain component is subsumed under the §4.71a spine rating.  The intermittent sensory component in this case had no functional import; but, the LLE motor impairment was of functional consequence and was given serious consideration.  The motor findings, however, were not severe (4/5 at worst), and were often anatomically inconsistent with the identified disc pathology.  Additionally, various examiners, as well as the NARSUM, attributed the weakness to pain and guarding (subsumed as above) rather than to true nerve impairment.  The findings were also subject to the probative value concerns raised by the NARSUM examiner’s documentation of the examination indicators of unreliable findings.  Members thus agreed that the neurological evidence for functionally significant weakness was insufficient to support a recommendation for additional service rating of the radiculopathy.

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board by a majority vote recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  In the matter of the left lower extremity radiculopathy associated with the unfitting lumbar spine condition, the Board unanimously agrees that it cannot be recommended for additional service disability rating.  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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbar Disc Disease	5243	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140320, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160007484, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification.by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure