RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02570
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060629

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

CI CONTENTION:  The applicant’s condition continues to worsen and negatively impacts his daily activities.  His 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 - 20060612	VARD - 20070710	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with herniated Nucleus Pulposus	5243	10%	Left and Central Disk Protrusion T6-7; Left Paracentral Disk Protrusion L4-5 and L5-S1	5237	40%	20060802	
			Radiculopathy, Left Lower Extremity Due to Above Condition	8520	40%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in August 2003 during his deployment to Operation Iraqi Freedom.  Diagnostic imaging showed disc protrusions at T6-7, L4-5 (at left L5 nerve root), and L5-S1 (at the left S1 nerve root).  The CI “was not a surgical candidate since symptoms were improved with avoidance of aggravating factors and medication, as well as no evidence of serious neurological impairment.”  Despite narcotic and anti-inflammatory pain medications and physical therapy, the condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and he was referred to an MEB.  The MEB forwarded “herniated intervertebral disc with no radicular symptoms” to the PEB for adjudication.  

At the orthopedic evaluation in March 2006, 3 months before separation, the CI had back spasm and tenderness with flexion noted as “can touch his knees,” extension reduced 50% and normal lateral flexion and rotation bilaterally.  The May 2006 orthopedic evaluation documented back tenderness without spasm.  Each plane of back motion was documented as normal.  At the electro-diagnostic study (motor-EMG and sensory-NCS) in May 2006, 2 months before separation, the CI denied any weakness, bowel or bladder incontinence, and complained of radiating pain.  Exam showed acute degeneration at L5/S1 in the dermatomal muscles on the left side.  The interpretation was acute lumbar radiculopathy at the L5-S1 level on the left side.  

The MEB NARSUM examination on 8 June 2006, less than 1 month before separation, the CI reported constant pain aggravated by bending over too far, picking up his child out of a crib, carrying anything heavier than 30 pounds, trying to move to quickly and being in one position for more than 5-10 minutes.  The CI had denied any weakness, bowel or bladder incontinence.  The examination revealed tenderness to palpation of the lumbar paraspinal muscles and normal spinal curvature.  The range of motion (ROM) findings were performed by physical therapy which documented flexion of 70 degrees (normal 90) and combined ROM 215 degrees (normal 240) with painful motion.  Strength was normal (5/5) throughout, sensation was grossly intact, and there were “no gross focal findings.”  

At the 2 August 2006 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported pain aggravated by bending, lifting, and prolonged sitting and standing.  The physical examination revealed tenderness to palpation of the lower lumbar spine and normal spinal curvature.  The ROM findings were flexion 30 degrees and combined ROM 130 degrees with painful motion.  Provocative testing for radicular symptoms (straight leg raising) was positive on the right and negative on the left.  Gait was normal, but the CI was unable to walk on the toes of the left foot.  There was slight weakness (5-/5) of the left lower extremity (extensor hallicus longus and gastrocnemius).  Reflexes and sensory exams were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating coded 5243 (intervertebral disc syndrome), citing pain limited motion and tenderness.  The VA assigned a 40% rating coded 5237 (lumbosacral strain) based on the VA C&P examination 1 month after separation, citing limitation of forward flexion.  The VA also assigned a 40% rating coded 8520 (sciatic nerve), citing incomplete paralysis below the left knee which is moderately severe.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (if applicable) (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination and/or painful motion and tenderness documented in the preponderance of examination  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour to recommend a higher 20% rating on these bases.  

While the VA examination supported a 40% rating based on limitation of forward flexion of the thoracolumbar spine (30 degrees or less), this examination was judged by the Board to be of lower probative value for the following reasons: (1) the rather dramatic reduction in ROM compared to all pre-service exams without any explanation for such an interval change (e.g. re-injury); and (2) the inter-observer consistency present on the pre-separation examinations.  The Board therefore, relying more heavily on the service examinations, concluded that a 10% rating was appropriately assigned in this case.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to the diagnosed L5-S1 radiculopathy with pain down the left leg to the foot.  The PEB’s disability description of “without significant neurologic abnormality” was adjudged as a not unfit finding.  The Board requires 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 of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; and, there was no objective evidence in-service of either motor or sensory deficits, despite abnormal electro-diagnostic testing.  The VA exams’ slight (5-/5) left leg decreased motor strength did not rise to the level of impairing duty performance.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the Board could not support a recommendation for Service rating on this basis.  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 back pain condition.  

BOARD FINDINGS:  In the matter of the back pain 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.  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 20140211, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

27 JUL 2016

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX, AR20160011464 (PD201402570)

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
( ) DVA