RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02902
BRANCH OF SERVICE:  Army     	SEPARATION DATE:  20061016

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

CI CONTENTION:  “Chronic back pain + issues, continue contributing to veteran inability to work.” 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 based upon a 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 - 20060911	VARD - 20070209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (Subsuming RLE Radiculopathy)	5237	10%	DDD & Herniated Disk L5-S1	5242	20%	20060911	
			Right S1 Radiculopathy…	8520	10%	20060911	
Allergic Rhinitis	Not unfitting	Recurrent Sinusitis	6512	10%	20060911	
GERD		GERD	7399-7346	10%	20060911	
Anxiety Disorder NOS		Anxiety Disorder	9434	10%	20060911	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.   According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed chronic back pain after a strain injury in Afghanistan in November 2002, 4 years prior to separation.  It was treated in theater and persisted after redeployment.  There was right lower extremity (RLE) pain radiation; and, imaging (MRI) diagnosed disc disease (“small” right sided herniation at L5/S1 with “slight compression of the right S1 nerve root”).  Electrophysiologic testing (EMG with NCV) demonstrated a mild (“mildly” prolonged tibial nerve latency) “right S1 radiculopathy.”  Numerous neurologic examinations were evidenced in STR entries.  Most of them documented normal findings, often specifying 5/5 strength; but, some noted decreased motor testing (bilateral, suspicious for guarding).  The consulting neurosurgeon documented serial examinations temporally probative to separation with findings of mild RLE motor (4+/5) and sensory (fine touch L5 dermatome) impairments; opining, however, that surgery was not indicated.  There were numerous STR entries that noted grossly normal range of motion (ROM), but a few noted non-specifically reduced flexion and/or extension.  An orthopedic entry 9 months prior to separation documented “flexion to about 20 cm off the ground [~80 degrees] ... extension is full.”  There were no entries recording formally measured ROM and were none that indicated limitation more significant than that above.  There were numerous entries documenting a normal gait, although there were two (one of which was from the neurosurgeon, 5 months before separation) which noted an antalgic gait.  There was STR documentation of normal spinal contour, with no entries to the contrary.  There was no STR documentation of incapacitating episodes except for a 48-hour quarters assignment (not meeting minimum VASRD criteria for a 10% rating).  Conservative treatment did not result in improvement sufficient to allow unrestricted duty and the CI was referred for an MEB, which in turn forwarded “chronic back pain secondary to disc herniation at L5-S1” to the PEB.

The MEB NARSUM examination on 14 March 2006, 7 months prior to separation, noted complaints of chronic low back pain rated 3-4/10 at baseline which increased to 10/10 with prolonged standing, sitting or other activities.  The physical examination did not comment on other ratable findings, but provided ROM measurements of flexion to 70 degrees (normal 90) with combined ROM of 195 degrees (normal 240), specifying painful motion.  

At the 11 September 2006 VA General Medical Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported constant pain with proximal RLE radiation interfering with bending, lifting (20 pounds), and prolonged sitting or standing.  He reported the use of a cane for balance over the last few months.  The physical examination recorded a “very slight” gait compensation for RLE pain (no cane), but a normal curvature of the spine and no spasm.  Neurologic testing was normal with 5/5 bilateral strength, intact sensation and symmetric reflexes, although the examiner noted that, while still “good,” strength was less on the right.  The examiner made a separate diagnosis of “right S1 radiculopathy.”  The VA ROM measurements were flexion to 60 degrees with combined ROM of 200 degrees, specifying painful motion and pain with repetition (but no DeLuca ROM degradation).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5237 (lumbar strain) possibly applied AR 635-40 (B-29, e) for non-mechanical ROM limitation, but was consistent with VASRD §4.71a criteria for service evidence.  The PEB’s DA Form 199 decision acknowledged the clinical details of the RLE radiculopathy, making clear that it was subsumed with the spine rating and not judged to be separately ratable.  The VA’s 20% rating under 5242 (degenerative arthritis of the spine) was based on the §4.71a criterion of flexion from 35 to 60 degrees from the C&P ROM, and the VA conferred an additional 10% rating (mild impairment) for the radiculopathy under code 8520 (sciatic nerve).  There was no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome which would support the minimum 10% rating under that formula.  The Board was faced with a disparity between the service and VA ROM evidence with obvious implications for the rating recommendation (service 10%, VA 20%).  The Board thus deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  It was also noted that there was STR and C&P evidence for at least intermittent gait disturbance, a 20% criterion. The C&P ROM evidence was temporally closer to separation (only a month prior) than that from the NARSUM; and, although both ROM evaluations were compliant with VASRD §4.46 (accurate measurement), the VA evaluation was more detailed and provided DeLuca testing.  These factors strengthened the probative value of the VA ROM evidence; and, a 20% recommendation was additionally supported by the intermittent documentation of abnormal gait.

The Board considered if additional service rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The only positive sensory finding was the minor one (as above) from the consulting neurosurgeon, and this was of no functional consequence and did not persist in later examinations.  The documented motor impairment was mild and only sporadically detected on examination.  The critical decision was whether or not there was a significant motor weakness which would impact military occupation-specific activities; and, members agreed that there was insufficient evidence that motor weakness existed to a degree that could be attributed as functionally impairing, at least not beyond that fairly subsumed under the higher spine rating as conceded above.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar spine condition under code 5242.  

Contended Conditions:  Anxiety Disorder.  The CI deployed to Afghanistan in 2002-2003, for which there was no evidence of mental health (MH) consequences; and, deployed to Iraq for three months from December 2004 to March 2005.  The post-deployment health assessment and a memorandum to the MEB from the commander indicated that there was no combat exposure related to the latter.  The CI presented to behavioral health some months after redeployment with complaints of irritability and insomnia, and was treated to good effect with a mood stabilizer (Lexapro).  There were no acute psychiatric features (suicidal ideation, etc.) and no hospital admissions.  A psychiatric addendum to the NARSUM dated 30 June 2006, 5 months prior to separation, documented greatly improved and stable symptoms with a normal mental status examination and a Global Assessment of Functioning (GAF) assignment of 70-75 (minimal if any impairment).  The examiner diagnosed anxiety disorder, NOS (not otherwise specified), specifically opining that criteria for post-traumatic stress disorder (PTSD) were not met; and, opined that the CI’s “psychiatric condition does not disqualify him from duty.”  There was no psychiatric profile throughout service and the commander’s statement did not implicate any MH diagnosis or impairment.  A VA mental disorders C&P examination was conducted 6 September 2006, 6 weeks prior to separation, and documented “some PTSD-like symptoms;” but, the examiner opined that the evaluation was “consistent with an anxiety disorder of mild-to-moderate severity;” and, specifically stated, “No significant functional impairments are indicated at this time.”

The Board directed attention to its recommendation based on the above evidence; and, its first charge with respect to this condition was an assessment of the fairness of the PEB’s determination that it was not unfitting.  Although the CI may have manifested some MH symptoms at separation, there was no performance-based evidence countering the MEB psychiatric opinion that the MH impairment was not severe enough to preclude retention.  The S1 profile, the commander’s statement and the lack of any evidence from the STR suggesting significant functional MH impairment all supported a conclusion that the MH condition was not unfitting.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for the anxiety disorder; thus, it was not eligible for service rating.

Other Contended PEB Conditions:  Allergic Rhinitis, Gastroesophageal Reflux Disease (GERD).  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended anxiety disorder, allergic rhinitis, and gastroesophageal reflux disease, the Board unanimously 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160013877 (PD201402902)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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