RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02805
BRANCH OF SERVICE:  Army	BOARD DATE:  20150406
SEPARATION DATE:  20070820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Preventive Medicine Specialist) medically separated for intervertebral disc syndrome (IVDS) and radiating pain to the left lower extremity.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3H1S1 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “herniated nucleus pulposus, L5-S1 with radicular pain into the left leg, left foot and left 5th toe” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded hearing loss and anxiety disorder, not otherwise specified (NOS) for PEB adjudication.  The Informal PEB adjudicated “neuralgia of the left L5 nerve root…” and “intervertebral disc syndrome” as unfitting, rated 10% and 0% respectively, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and AR 635-40 B-15.  The remaining conditions were determined to be not unfitting.  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 20070725	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neuralgia of Left L5 Nerve Root; Radiating Pain into LLE	5243-8620	10%	Neuralgia of Left L5 Nerve Root	8620	0%	STR	
IVDS	5243	0%	IVDS	5243	0%	STR	
Anxiety Disorder, NOS	Not Unfitting	Anxiety Disorder, NOs	9413	0%	STR	
Hearing Loss	Not Unfitting	No VA Placement	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20080307 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The history for the left L5 neuralgia and the IVDS are presented together as these conditions are interwoven in the record.  They are then adjudicated separately.

Neuralgia of Left L5 Nerve Root; Radiating Pain into Left Lower Extremity.  The CI first presented with low back pain (LBP) in 1995 after training in Air Assault School, but without discrete trauma.  He had LBP intermittently over the next 10 years.  A magnetic resonance imaging (MRI) on 21 October 2005 showed a broad based disc bulge at L5 which possibly contacted the nerve root bilaterally.  He was managed with medications, duty restrictions, and physical therapy (PT), but his pain persisted.  A repeat MRI on 28 April 2006 showed a persistent herniated disc at L5-S1 with impingement of the left nerve root and also degenerative disc disease (DDD) at L4-5.  The CI was evaluated in physical medicine on 22 May 2006 and his neurological examination was normal and atrophy absent.  His pain continued to progress.  On 11 October 2006, an X-ray showed both DDD and degenerative joint disease.  A neurosurgical evaluation the next day documented a normal neurological examination and gait.  At the MEB examination on 12 February 2007, the CI reported back pain with numbness in the left foot and leg.  The examiner noted a mild decrease in flexion and extension.  A repeat MRI on 6 March 2007 showed persistent DDD and herniation of the L5-S1 disc with impingement of the left L5 nerve root.  Electrodiagnostic (EDX) studies the next day in physical medicine revealed a left L5 radiculopathy without muscle abnormalities.  The narrative summary was dated 3 April 2007, 4 months prior to separation.  The examiner noted no evidence of spasm or tenderness to percussion.  Reflexes were normal, but provocative testing for nerve root irritation was positive on the left.  The CI had range-of-motion (ROM) testing in PT a week later on 11 April 2007.  The motion was limited by pain and is charted below.  The VA Compensation and Pension (C&P) examination was accomplished on 17 June 2008, 10 months after separation.  The CI reported pain with prolonged walking and sitting as well as numbness of the left calf and foot, but denied incapacitation.  On examination, there was no tenderness or spasm of the paravertebral muscles.  The neurological examination was normal.  The ROM was normal other than rotation which was reduced 10 degrees bilaterally.  No comment was made regarding the gait.  At a neurological examination on 7 August 2008, over 11 months after separation, the CI reported an increase in pain after a recent fall as well as persistent numbness and loss of sensation in both lower extremities.  On examination, he was able to rise from a seated position without use of his arms, had a normal gait and muscle tone and bulk.  No objective evidence of a radiculopathy was present.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT/MEB ~4 Mo. Pre-Sep	VA C&P ~10 Mo. Post-Sep	
Flexion (90 Normal)	70	90	
Combined (240)	170	220	
Comment	Painful motion	Nml neuro	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation for the neuralgia based on the above evidence.  Although the neurological examination was consistently recorded as normal, the CI had symptoms which correlated with the MRI findings and were supported on EDX studies.  The PEB rated the condition at 10% using the dual code 5243 and 8620 (intervertebral disc syndrome and neuritis of the sciatic nerve).  After the C&P, the VA also rated the neuralgia condition at 10% using the 8620 code, retroactive to separation.  Absent objective findings of neuralgia other than the EDX studies, the Board found no route to a rating higher than the 10% adjudicated by the PEB and VA for mild neuritis.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the L5 neuralgia condition.

Intervertebral Disc Syndrome.  The Board then considered the rating for the IVDS based on the above evidence.  The PEB rated the IVDS condition at 0% using the code 5243 and referencing AR 635-40 B-15.  The VA rated the condition at 10% also using the code 5243.  The limitation in motion supports a 10% rating.  The examinations proximate to separation neither document an abnormal gait or posture nor incapacitation; a higher rating than 10% is not supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the IVDS condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended hearing loss and anxiety disorder NOS conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The profiles at separation were H1S1.  Neither condition was implicated in the commander’s statement or judged to fail retention standards.  Both were reviewed and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance.  After due deliberation 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 either contended condition and so no additional disability rating is recommended.

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 IVDS condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the neuralgia condition and IAW VASRD §4.124aa, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the IVDS condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended hearing loss and anxiety disorder, NOS conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Neuralgia Left L5 Nerve Root… 	5243-8620	10%	
Intervertebral Disc Syndrome	5243	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140606, 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 XXXXXXXXXXXXXXXXXX, AR20150018876 (PD201402805)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA