RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02352
BRANCH OF SERVICE:  Army	BOARD DATE:  20150424
SEPARATION DATE:  20060428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-6 (Intelligence Analyst) medically separated for chronic back pain and radiculopathy conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but alternate physical fitness testing was authorized.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back and radiculopathy conditions, characterized as “chronic low back pain with radiculopathy,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the condition separately as “chronic back pain, s/p L5-S1 Fusion” and “right L5-S1 radiculopathy…” as unfitting, rated 10% and 10% respectfully, with likely application of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the 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/Naval 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:

IPEB – Dated 20060419	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain 	5241	10%	Degenerative Disc Disease, LS Spine	5243-5237	40%	20060802	
Right L5-S1 Radiculopathy	8599-8520	10%	Right Leg Radiculopathy Assoc. w/T-Spine, DDD L5-S1 …	8520	10%	20060802	
Other x 0 (Not In Scope)	Other x 5	
COMBINED:  20%	COMBINED:  50%	
*Derived from VA Rating Decision (VARD) dated 20070226 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The exams and evidence for the chronic back pain and radiculopathy are described together with subsequent separate rating analysis.

Chronic Back Pain Condition and Right L5-S1 Radiculopathy.  The narrative summary (NARSUM) and treatment record noted the CI had a back injury in March 2005.  Evaluation including magnetic resonance imaging, indicated herniated discs at L4-5 and L5-S1 with spinal stenosis and right nerve root impingement.  There was little relief from multiple epidural steroid injections and the CI had multi-level spinal fusion surgery (L4-5 and L5-S1) in December 2005.  The CI had continued back pain with right leg pain, weakness and numbness and electrophysiology studies (nerve conduction velocity [NCV] and electromyogram [EMG]) confirmed a chronic mild right L5-S1 radiculopathy continued following surgery.  The CI was taking a neuroactive medication (Gabapentin) and a medication for sleep (Trazadone).  At the NARSUM exam, the CI reported low back pain (LBP), and “burning pain in the right foot with intermittent numbness and weakness in the right leg, which causes him to carry a cane … prevents himself from falling.”  The MEB exam DD Form 2808, Report of Medical Examination, documented tenderness to palpation of the lumbosacral spine and bilateral atrophy of the thigh and calf muscles (quadriceps and gastrocnemius).  The NARSUM exam documented tenderness, a healed scar and symmetric reflexes.  There was “mild strength deficit in the right lower extremity 4/5 as opposed to 5/5 on the left.”  Pain limited range-of-motion (ROM) was noted as charted below.

At the VA Compensation and Pension exam performed 4 months after separation, the CI reported LBP with weakness and pain radiation into his right leg with numbness down into the foot.  He had flares multiple times a day with no periods of incapacitation.  He was taking Gabapentin and a narcotic-like pain reliever (Tramadol).  The VA exam documented a normal gait with tenderness and spasm and flattening of the lumbar curvature.  ROMs are charted below.  Reflexes and strength in the legs were normal.  There was diminished sensation in the L5-S1 distribution and the prior EMG documented L5-S1 radiculopathy was cited.  It was noted that VA records over 6 years after separation documented worsening of the CI’s right leg radiculopathy, addition of left leg radiculopathy and granting of individual unemployability.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~1 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
Flexion (90 Normal)	40 (42 w/pain at 32)	30 w/pain at 30	
Combined (240)	150	105	
Comment:  
Surgery ~4 Mo Pre-Sep	See text above; Cane/weak RLE	No change on repetition; see text	
§4.71a Rating (Spine)	20% (PEB 10%)	40%	
§4.123a (Nerve)	20% (PEB 10%)	10%	

The Board directed attention to its rating recommendations based on the above evidence.

Chronic Back Pain Condition.  The Board deliberated if the NARSUM or VA exam had the highest probative value for rating at the time of separation.  Both exams in evidence documented findings sufficient for a 20% rating IAW VASRD §4.71a and the General Rating Formula for Diseases and Injuries of the Spine, while the VA exam documented limited ROM warranting a 40% rating.  There were no periods of incapacitation for rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The NARSUM exam was closest to separation, but was also less than 4 months following surgery.  The potential of a post-surgery “honeymoon period” (prior to full healing with potential scarring) was discussed versus the 8-month post-surgery VA exam which was further from separation, but following an additional 5 months of post-surgical healing.  The remote VA evidence was considered after separation worsening and not indicative of the CI’s disability picture proximate to separation.  The NARSUM exam documented forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees and muscle spasm or guarding severe enough to result in an abnormal spinal contour, either of which warrant a 20% rating IAW VASRD §4.71a.  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 back pain condition.

Right L5-S1 Radiculopathy Condition.  In addition to the right leg radiating pain, the CI had objective evidence of atrophy, weakness, and sensory deficit of his right leg that aligned with the distribution of the EMG/NCV-documented L5-S1 radiculopathy.  As the NARSUM exam was considered to have the highest probative value for rating the back condition, it would be inappropriate to “cherry-pick” exams for rating the radiculopathy condition and the Board considered the ratable criteria from the exams.  Given the objective weakness, muscle atrophy, and use of a cane with occasional imbalance, the rating for the sciatic nerve IAW VASRD §4.124a would best be described as “Moderate” (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 right L5-S1 radiculopathy condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on AR 635-40 for rating the back pain condition was likely operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the right L5-S1 radiculopathy condition, the Board unanimously recommends a disability rating of 20%, coded 8599-8520 IAW VASRD §4.124a.  There were no other conditions within the Board’s scope of review for consideration.

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 Back Pain	5241	20%	
Right L5-S1 Radiculopathy	8599-8520	20%	
COMBINED	40%	

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

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 XXXXXXXXXXXXXXXXXXXX, AR20150014417 (PD201402352)

1.  Under the authority of Title 10, 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 line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% 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 40% 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:

Encl						     
						
CF: 
(  ) DoD PDBR
(  ) DVA