RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02735
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Medical Specialist, medically separated for “right leg pain with 4/5 weakness of right foot dorsiflexors secondary to peroneal nerve injury,” and “chronic low back pain attributed to degenerative disc disease,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI requests the Board consider all conditions.  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 –20021223	VARD  - 20030925	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Leg Pain, Deep Peroneal Nerve Injury	8523	10%	Residual, Right Leg Injury	8523	30%	20030805	
Chronic Low Back Pain	5295	10%	DDD, Lumbar Spine w/Radiculopathy	5292	20%		
Reactive Depression…	Not Unfitting	Depression	9434	10%		
Adjustment Disorder… 	Not Unfitting					
Asthma	Not Unfitting	Asthma	6602	10%		
Chronic Bladder Infection	Not Unfitting	Chronic Urinary Tract Infections	7599-7515	10%		
Bladder Infections and Stress Incontinence	Not Unfitting					
		Stress Incontinence	7517	0%		
Acne	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Right Leg Pain…Deep Peroneal Never Injury.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right leg pain weakness and deep peroneal nerve injury began in June 2001 after a horseback riding accident.  Soon after the accident the CI had right leg weakness, right lower extremities paresthesias (unusual sensations), leg and back pain.  Electrodiagnostic testing (EMG-electromyography) in December 2001 demonstrated significant change in the muscles innervated by the deep peroneal nerve and lesser changes to the muscles innervated by the tibial nerve.  Interpretation indicated possible post-accident anterior tibial compartment syndrome with injury to the deep peroneal nerve versus piriformis syndrome.  

There was no surgical indication.  Despite treatment, the right leg condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB which forwarded “right leg weakness secondary to a deep peroneal nerve injury sustained from a horse accident” for PEB adjudication.  

At the MEB NARSUM examination dated September 2002, 4 months prior to separation, the CI reported right leg weakness as the chief complaint.  She also reported chronic lower back pain with radicular symptoms off and on into the legs which was pain and paresthesias (see back condition below).  Physical examination showed the right lower extremity had decreased (4/5) muscle strength for dorsiflexion and the CI’s gait showed weakness of her right leg.  There was a right foot drop.  At the follow-up physical therapy evaluation in October 2002, the CI had no foot dorsiflexion.  The assessment was no change in foot drop.  

At the VA Compensation and Pension (C&P) examination in August 2003, performed 6 months after separation, the CI reported daily 5/10 pain and spasm in the right leg with no ability to lift up or push down the right foot, and required use of an ankle/foot brace.  Physical examination showed a slow steppage-type gait (high stepping, neuropathic gait; foot drop).  Right leg and foot strength was weak (4/5 compared to 5/5 on the left).  The CI could not actively dorsiflex the right foot and plantar flexion was weak (movement against resistance).  Ankle range of motion (ROM) was dorsiflexion to 0 degrees (normal 20) and plantar flexion to 50 degrees (normal 45).  There was decreased sensation on the anterior and posterior right thigh and on the lateral aspect on the right lower leg.  The examiner diagnosed injury of the right leg with damage to the deep peroneal and tibial nerves resulting in weakness, dysesthesia, and foot drop of the right extremity.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 8523 code (paralysis of: anterior tibial nerve (deep peroneal)), citing EMG verified nerve injury, required ankle brace for partial foot drop due to muscle weakness and rated as incomplete peroneal nerve paralysis-moderate.  The VA assigned a 30% rating also using the 8523 code based on the VA C&P examination 6 months after separation, citing dorsal flexion of the foot was lost.  

All examinations proximate to separation indicated right foot drop, although some treatment notes indicated “partial foot drop” and weakened strength in the muscles that dorsiflexed the foot.  The criteria for code 8523 indicates that paralysis “complete; dorsal flexion of foot lost” is 30% and incomplete (partial) severe paralysis is 20%.  Although there was some indication that there was not clinically complete paralysis of the anterior tibial nerve (deep peroneal), there was sufficient evidence that dorsal flexion of the right foot was lost (foot drop) to justify the 30% rating.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the right leg pain, deep peroneal nerve injury condition, coded 8523.  

Chronic Low Back Pain.  According to the STR and the MEB NARSUM, the CI’s low back pain condition began in June 2001 following the same horseback riding accident as noted above.  Since the horse accident the CI had back pain with right leg weakness, right lower extremities paresthesias (see above for unfit right leg nerve condition).  Initial diagnostic imaging of the back was negative.  Imaging in May 2002 documented degenerative disc disease with a small disc bulge at L4-L5 without indications of impingement.  There was no surgical indication.  Despite treatment, the low back pain condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB which forwarded “chronic low back pain with radicular symptoms secondary to degenerative disc disease” for PEB adjudication.  

At the MEB NARSUM examination dated September 2002, 4 months prior to separation, the CI reported chronic low back pain with radicular symptoms off and on in both legs (NOTE:  the right lower leg and foot peripheral nerve condition symptoms and findings are all addressed above as they were not attributed to a radiculopathy from the back condition).  Physical examination showed “increased tissue tension of the paraspinal musculature in the lumbosacral region.”  There was no back ROM cited.  Treatment notes indicated little relief from medications, electrical stimulation (TENS) or physical therapy (PT).  There had been approximately 7 days of incapacitation including emergency department visits and placement on quarters for the back condition, and PT notes indicated painful motion and some limitation of motion (limited extension and rotations) as a component of the back pain.  

In November 2002 (after the NARSUM), 3 months prior to separation, the CI had emergency room care and treatment after falling on the stairs and striking her buttocks with 9/10 pain.  Diagnostic imaging confirmed a distal tailbone (coccyx) fracture posterior.  She had additional quarters and emergency department treatment following this episode with the total duration of incapacitation (physician prescribed bed rest and treatment) of at least 2 weeks but less than 4 weeks in the 12 months prior to separation.  

At the VA C&P examination in August 2003, performed 6 months after separation, the CI reported daily 5/10 pain and spasm in her lower back, with use of a TENS unit about 2 times per week.  During flare-ups, she had to visit the emergency room for medication injections.  Physical examination showed normal alignment of the spine with tenderness in the lower lumbar area.  Straight leg raising was negative (a positive result indicates a herniated disc in the back).  The CI had difficulty walking on the heels and toes.  ROM was normal flexion with painful extension limited to 20 degrees (VARD noted as moderate limitation of motion); lateral movements (bending) and rotations of 30 degrees were noted as slight limitation by the VARD.  Diagnostic imaging noted disc space narrowing in the lower lumbar spine with no evidence of fracture or dislocation in the sacrum and coccyx.  The examiner diagnosed degenerative disc disease of the lumbar spine with radiculopathy.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5295 code (lumbosacral strain), citing no spasm or loss of spinal motion.  The VA assigned a 20% rating using the 5292 code (spine, limitation of motion of, lumbar) based on the VA C&P examination 6 months after separation, citing 20% “is granted for moderate limitation of motion of the lumbar spine, or demonstrable deformity of a vertebral body from fracture with slight limitation of motion.”  

The Board’s rating recommendation is for the low back pain and sacroiliac dysfunction together in accordance with VASRD §4.66 (sacroiliac joint) which stipulates “The lumbosacral and sacroiliac joints should be considered as one anatomical segment for rating purposes.”  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  

The Board noted that the 2003 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in September 2003.  The Board must correlate the above clinical data with the 2003 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome; based on incapacitating episodes); and 5295 (lumbosacral strain).  The 2003 criteria relevant for consideration in the Board’s recommendation are cited in context below.  

The Board noted there was additional injury and worsening of the CI’s back condition following a fall after completion of the NARSUM.  There was painful motion and the Board adjudged that there was slight limitation of motion of the lumbosacral spine (10% IAW code 5292, spine, limitation of motion of, lumbar; or 10% IAW code 5295, lumbosacral strain, with characteristic pain on motion).  The Board deliberated if using code 5292 also warranted adding 10% for demonstrable deformity of vertebral body IAW code 5285; vertebra, fracture of, residuals; for evidence of coccyx fracture 3 months prior to separation that had resolved on imaging by 6 months after separation.  The Board also deliberated if the CI had incapacitating episodes having a total duration of at least two weeks but less than 4 weeks during the past 12 months, and weighed the multiple episodes of quarters and emergency department visits.  There was a total period of incapacitation including periods of quarters and emergency treatment periods of approximately 12-16 days (depending on Board member’s varied assessments of the record).  There were multiple rating schema considered which supported a 20% rating including 5292-5293 (limited motion with incapacitation), 5293-5292 (incapacitation and limited motion), 5285-5292 (fracture plus slight limited motion), or 5293 incapacitation.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI, as noted above, had an unfitting right leg deep peroneal nerve injury.  There was no other fixed peripheral nerve impairment, and neither intermittent paresthesias nor any other additional radiculopathy due to the back condition rose to the level of being unfitting.  The Board therefore concluded that additional peripheral nerve disability rating (beyond the right peroneal nerve) was not justified on this basis.  

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 low back pain condition, coded 5292-5293.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that reactive depression secondary to right leg weakness; adjustment disorder with depressed mood; asthma, allergic rhinitis; chronic bladder infections; chronic headaches; acne; and bladder infections and stress incontinence conditions were not unfitting.  These condition were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended reactive depression secondary to right leg weakness; adjustment disorder with depressed mood; asthma, allergic rhinitis; chronic bladder infections; chronic headaches; acne; and bladder infections and stress incontinence conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right leg pain/weakness condition, the Board unanimously recommends a disability rating of 30%, coded 8523 IAW VASRD §4.124a.  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5292-5293 IAW VASRD §4.71a.  In the matter of the contended reactive depression secondary to right leg weakness; asthma, allergic rhinitis; chronic bladder infections, chronic headaches, acne, bladder infections and stress incontinence, and adjustment disorder with depressed mood conditions, the Board unanimously or majority recommends no change from the PEB determinations as not unfitting.  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	
Right Leg Pain and 4/5 Weakness of Foot Dorsiflexors	8523	30%	
Chronic Low Back Pain	5292-5293	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140529, with attachments
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

26 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20160011336 (PD201402735)

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.

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:

Enclosure

CF:
( ) DoD PDBR
( ) DVA