RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02955
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070529

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Tactical Helicopter Repairman, medically separated for “chronic back pain, due to lumbar degenerative disc disease, without neurologic abnormality,” with a 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 based on 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 - 20070330	VARD - 20090728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, due to Lumbar Degenerative Disc Disease, without Neurologic Abnormality	5299-5242	20%	Lumbago, Degenerative Disc Disease of the Lumbar Spine	5243	10%	20090629	
Lightning Strike with Residual Right Leg Pain (MEB Condition)			Sympathetic Peripheral Nerve Injury Right Lower Extremity	8520	10%	20090629	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Back Pain, due to Lumbar Degenerative Disc Disease, without Neurologic Abnormality.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in June 2006 due to right lower leg pain and constant limping after a lightning strike in December 2005.  An electromyography (EMG) study in January 2006 was normal; however, the neurologist stated “that even though it is normal, patient's pain may be associated by sympathetically maintained pain.”  An orthopedic spine consultation in January 2007 recommended no surgery at that time.  Despite treatment, to include physical therapy (PT) and pain management, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for MEB.  The MEB forwarded “chronic low back with DDD at L4/L5 and L5/S1,” “osteoarthritis at L4/L5 and L5/S1,” and “lightning strike with residual right leg pain” for PEB adjudication.  

At the MEB examination (recorded on DD Form 2808, Report of Medical Examination) dated January 2007, 5 months prior to separation, the physical examination showed the lumbar area was tender to palpation.  The CI’s range of motion (ROM) was decreased with pain.  Ambulation was normal.  The MEB NARSUM examination on 9 March 2007, 3 months prior to separation, noted complaints of achy dull back pain which increased when sitting or standing for 20 minutes and when lifting, climbing or bending.  The physical examination showed tenderness to palpitation of the lumbar region and the right leg.  The gait showed a limping on the right side and walk was normal toes to heel.  Motor strength was reduced on the right and normal on the left.  A straight leg test for radiculopathy was negative.  Range of motion (ROM) was forward flexion of 60 degrees (normal 90) and the combined ROM was 160 degrees (normal 240); there was painful motion in all planes described by the examiner as “excruciating.”  

At the VA Compensation and Pension (C&P) examination on 29 June 2009, performed 2 years after separation, the CI reported constant low back pain and intermittent severe back pain occurring weekly or more and lasting hours.  Additionally, he reported “if his back locks up he falls.”  The physical examination showed an abnormal gait, because of limping on left leg due to recent left knee surgery, of which the examiner stated “was not related to his lower extremity or due to his back.”  There was tenderness with no spasms; the examiner indicated localized tenderness and guarding was not severe enough to be responsible for an abnormal gait or abnormal spinal contour.  The motor and sensory examinations were normal for bilateral extremities, except for a reported loss to light touch and pinprick in the right fifth toe only.  There was no foot or leg weakness.  Straight leg testing for radiculopathy was negative.  The ROM was forward flexion of 90 degrees (normal 90) and a combined ROM of 240 degrees (normal 240).  There was no objective evidence of pain on motion or additional limitations after repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 20% coded analogous to 5242 (degenerative arthritis of the spine), citing ROM limited by pain, with localized tenderness and antalgic gait.  The PEB combined the “chronic low back with DDD at L4/L5 and L5/S1,” “osteoarthritis at L4/L5 and L5/S1,” and “lightning strike with residual right leg pain” conditions as a single unfitting condition coded analogously to 5242 (degenerative arthritis of the spine) and rated 20% (citing ROM limited by pain, with localized tenderness and antalgic gait).  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  The “chronic low back with DDD at L4/L5 and L5/S1” and “osteoarthritis at L4/L5 and L5/S1” were appropriately combined as a single ratable thoracolumbar spine condition.  The PEB disability description language of “without neurologic abnormality” was considered a presumptive “not unfit” finding for the MEB referred diagnosis of “lightning strike with residual right leg pain.”  There was no radiculopathy from the back condition, but the right leg pain (after lightning strike) will be discussed separately below.  The VA rated the back condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 25 months after separation, citing limitation of forward flexion and combined ROM.  The NARSUM examination had the highest probative value for rating at separation.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the NARSUM examination.  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 chronic back pain condition.  

Contended PEB Condition:  Lightning Strike with Residual Right Leg Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  As discussed above, the right leg pain preceded the back condition, was not a radiculopathy, and was considered as a “not unfitting” PEB determination.  As noted above, the CI’s right leg injury occurred in December 2005, 18 months prior to separation, due to lightning.  He had sharp lower leg pain with weight bearing and underwent physical therapy and use of a cane for about a year due to weakness and pain between the tibia and lower leg muscles.  Prolonged limping from the right leg condition was ascribed as the cause of the back pain (above).  At the NARSUM, right lower leg pain was described as “on and off” burning pain with numbness.  As noted under the back condition above, neurology indicated that even with a normal EMG, that pain could be associated by sympathetically maintained pain (not a radiculopathy from the back condition).  On examination, there was tenderness to palpation in between the fibula and the calf region from mid leg towards the right ankle.  There was weakness (4+/5) due to pain of right knee flexion and extension, and right foot dorsiflexion.  Reflexes and sensory examination was normal.  The gait showed a limping on the right side; walk was normal toes to heel.  The contended right leg pain condition was profiled, implicated in the commander’s statement, and judged to fail retention standards.  The restrictions from the back condition and from the leg condition could not be clearly separated to either or both conditions; however, the right leg condition was improving, and by separation, there was no fixed neurologic deficit and the minimal motor weakness was attributed to pain.  After due deliberation, the Board majority concluded that there was not a preponderance of evidence sufficient to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended lightning strike with residual right leg pain condition, the Board majority agrees that it cannot recommend it for additional disability rating.  The single voter for dissent recommended re-characterization and did not elect to submit a minority opinion.  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 20140610, with attachments
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 XXXXXXXXXXXXXXXXXXXXX AR20160013886 (PD201402955)

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