RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02517
BRANCH OF SERVICE:  Army	Separation Date:  20050721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Motor Transport Operator) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards, but per his permanent L3 profile.  After the profile was issued he was referred for a Medical Evaluation Board (MEB).  The conditions “L5-S1 anterolisthesis, disc bulge, bilateral spondylolysis with spondylolisthesis and pars defect”, “status post decompression, laminectomy, and fusion L5-S1 with screws and plates”, and “chronic low back pain (LBP) 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 low back conditions together as unfitting and rated the back at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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 20050621	VA* - (~3 Months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…	5241	10%	Lumbosacral Spondylolisthesis…	5239	10%	20051013	
			Sciatica, Right Lower Extremity	8620	10%	20051013	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060125 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  

Chronic LBP Condition.  The CI sustained a back injury in July 2003 while in Kuwait.  The CI was evaluated multiple times for ongoing LBP and lumbar spine magnetic resonance imaging (MRI) done in January 2004 showed lumbosacral degenerative changes with a disc bulge (see MEB diagnoses above).  The CI underwent an L5 nerve root sleeve steroid injection for symptoms of pain radiation from the back to the legs with only temporary symptom relief.  The CI underwent back surgery (decompression, laminectomy and L5-S1 fusion) on 9 September 2004.  A lumbar spine X-ray done in November 2004 showed a satisfactory post-lumbar surgery fusion with a repeat lumbar spine X-ray in February 2005 showing spondylolisthesis (forward displacement) at L5-S1 (as did later X-ray).  The physical therapist (PT) performed MEB range-of-motion (ROM) evaluations approximately 5 months prior to separation, documenting painful motion with forward flexion of 80 degrees (normal 90) and combined ROM of 220 degrees (normal 240).  

The Orthopedist’s consult for the MEB, approximately 2 months prior to separation, documented that the CI reported pain in his buttocks, thigh, and leg with numbness in his right foot.  His pain level was 2/10 at rest and would increase to 6/10 with activity.  He was unable to carry a fighting load, unable to dig a fighting position and he was uncertain if he could get out of the way of direct fire.  An exam documented a level pelvis; fully intact sensory exam with numbness on the dorsum (top) of his right foot.  Reflexes were 1+ on the right ankle (Achilles tendon) compared to 2+ on the opposite side.  Muscle strength was weaker in the extensors of the right foot as compared to the left.  The CI could “toe and heel walk without too much difficulty,” he had “fairly good muscle tone and strength.”  Back ROM was reported as “good with no muscle spasm.”  Straight leg raise test was not positive (for radicular symptoms).  He walked “with a fairly normal gait.”  

The MEB Narrative Summary (NARSUM) approximately 2 months prior to separation documented that the CI reported constant right leg pain with numbness, worse with sitting, standing, and walking distances with dull LBP 4-5/10.  There was no improvement in his back and functional ability since the orthopedic assessment was accomplished.  The CI did not have bowel or bladder dysfunction.  Exam documented tenderness to palpation (TTP), mild pain with back movements, and a negative straight leg raise bilaterally.  Neurologic function was intact with a decreased right Achilles reflex (1+ versus opposite side 2+).  There was no muscle wasting.  The diagnosis was chronic low back pain with right leg radiculopathy (following back surgery).  

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented that the CI reported sharp shooting LBP pain (4/10 in intensity) with radiation to the right leg and bilateral hips/buttocks.  Medication included narcotic pain medicine daily which helped.  The CI reported that he had numbness and tingling in his right leg and foot with flares or if he sat upright in a chair or drove for a long period of time.  He denied weakness, bowel or bladder complaints.  The VA C&P physical exam documented a normal gait, tenderness in the area of the back surgery scar and painful ROMs to the VASRD normal limits for the thoracolumbar spine.  Right straight leg raise was positive and recreated the CI’s right leg pain, numbness and tingling symptoms.  Neurologic exam documented normal symmetric reflexes, normal strength, and normal sensation (to touch, vibratory and painful stimuli).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5241 (spinal fusion) and rated at 10%.  The VA coded the back condition as 5239 (spondylolisthesis or segmental instability) and rated at 10%, and also rated a right leg radiculopathy as 8620 (sciatic nerve, neuritis) at 10%.  The TTP documented on the MEB exam was not severe enough to alter the gait or spinal contour.  The CI met the 10% rating criteria for “localized tenderness not resulting in abnormal gait or abnormal spinal contour” and all other exams supported the 10% rating for painful or limited thoracolumbar ROM.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  

The Board deliberated if the CI’s radiculopathy (peripheral nerve) as noted on the MEB and NARSUM was separately unfitting and ratable.  The PEB addressed only leg pain without other symptoms of radiculopathy as noted in the NARSUM.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  The motor impairment of the weaker muscle strength in the extensors in the right foot was relatively minor, could not be linked to significant physical impairment, and was no longer present at the VA exam.  Since no evidence of duty-limiting functional impairment exists in this case, the Board could not support a recommendation for additional rating based on nerve impairment.  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 for the low back condition without additional rating for a peripheral nerve 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  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 20140529 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160005112  (PD201402517)

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, 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
( ) OVA