RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02997
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070821

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Flight Engineer) medically separated “chronic low back pain,” rated at 10%.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 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: 

IPEB – Dated 20070723	VA* - Based on Service Treatment Record (STR) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	L5-S1 Herniated Nucleus Pulposus	5243	40%	STR	
BLE Radiculopathy	8521	Not Ratable	Radiculopathy Right Lower Extremity	8521	10%	STR	
			Radiculopathy Left Lower Extremity 	8521	10%	STR	
Other x 0 (Not In Scope)	Other x 7 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20080111 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition (Subsuming Contended Radiculopathy).  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an onset of back pain after a hard parachute landing in Iraq in July 2005 (2 years pre-separation).  The CI was able to continue the deployment.  The earliest available STR entry is just over a year later for “acute mid back pain” without mention of radicular symptoms or significant findings.  The development of right lower extremity (RLE) sensory symptoms was noted in subsequent notes, but neurologic testing was normal with 5/5 strength.  Magnetic resonance imaging (MRI) from December 2006 diagnosed degenerative disc disease at L5/S1 with some left nerve impingement.  The pain persisted and complaints of left lower extremity (LLE) weakness and incontinence prompted a repeat MRI in January 2007, which demonstrated a progression of the L5/S1 disc disease (with canal and foraminal stenosis and diffuse degenerative changes).  Surgery was offered and declined with no further progression of neurological symptoms or recurrent incontinence; a trial of epidural steroid injections was unsuccessful; and, an MEB was initiated.  There are numerous neurological examinations in evidence.  There was inconsistent documentation of RLE (sometimes bilateral soles) sensory deficits, and 4/5 strength deficits in the LLE (initially proximal, later confined to extensor hallucis longus); but, the majority of exams recorded 5/5 BLE strength (including serial exams by a neurology consultant).  There was no STR documentation of any associated functional impairment.  There are multiple STR entries documenting grossly normal thoracolumbar range-of-motion (ROM), one from orthopedics (May 2007, 3 months pre-separation) documenting “slightly decreased” flexion, but none suggesting significant ROM limitation.  Formal ROM measurements (employing inclinometer for some planes) for the MEB were conducted by physical therapy (PT) in June 2007 (5 weeks after the aforementioned orthopedic observation); and, the recorded measurements were 15 degrees flexion (normal 90) with a combined ROM of 95 degrees (normal 240), all limited by pain.  There is one STR entry noting antalgic gait, but this was preceded and followed by entries documenting normal gait.  There are no STR entries documenting abnormal spinal contour or periods of incapacitation.  

The NARSUM was conducted 28 June 2007 (2 months pre-separation and the same day as above PT ROM evaluation) and documented “chronic persistent back pain, pain radiating down his left leg and numbness of his right leg” with no mention of subjective weakness or other functional complaints referable to neurological impairment.  The specified functional limitations were climbing, lifting, loadbearing, running, and prolonged walking or standing.  The NARSUM physical examination recorded a normal gait, tenderness (no mention spasm), negative straight leg raise, mixed dermatomal sensory deficits of the RLE and foot, and normal BLE strength (5/5) and reflexes.  The ROM documentation was “flexion slightly decreased with fingertips approximately 4 inches from the floor due to both low back pain and [left sciatic radicular] pain.”  The NARSUM, however, did refer to and attach the PT ROM measurements cited above, opining that the limited ROM was not “due to a mechanical block.”  The NARSUM diagnosis was “L5-S1 herniated nucleus pulposus [disc] with [BLE] radiculopathy;” although, as noted in the summary, separate diagnoses were submitted on the DA Form 3947 MEB submission.  The commander’s performance statement noted both the disc disease and radiculopathy and described constant pain and various MOS limitations, but did not specify any functional limitations specifically attributable to neurologic impairment.

A VA Compensation and Pension (C&P) examination was conducted 8 April 2008 (8 months post-separation) after the original VA rating decision reflected in the above rating comparison chart.  It deferred any new history indicating that the condition was already service connected.  It did, however, provide a BLE neurologic exam documenting normal findings and 5/5 strength.  Specifically with regards to the separately rated neuropathies as per the rating comparison chart, this examiner opined, “No weakness related to the peripheral neuropathy so the determination of mild, moderate or severe weakness is not applicable.”  This exam also documented goniometric ROM measurements of flexion to 70 degrees and combined 180 degrees.  The VA rating decision following this C&P examination proposed a decrease in rating to 10% based on the above ROM evidence, although later rating decisions do not indicate that this transpired.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5243 (intervertebral disc syndrome) referenced various findings from the NARSUM including “decreased [ROM] on forward flexion secondary to back pain and [LLE] pain;” and, did not cite the PT ROM measurements.  The PEB’s DA Form 199 decision also described the NARSUM neurological findings and stated, “The radiculopathy is not independently ratable.”  The VA’s 40% rating under 5243 cited the CI’s failure to report for earlier scheduled examinations and referenced the PT ROM measurements as the basis for rating.  The Board carefully considered its rating recommendation in this case, confronted with the facts that the only formal ROM measurements from the Service met the VASRD §4.71a criterion of flexion less than 30 degrees for a 40% rating; but, all of the informal ROM evidence from the Service was markedly disparate from the single PT evaluation and corroborated the post-separation C&P ROM evidence which is consistent with a 10% rating under §4.71a.  

Members noted that the only ROM evidence fully compliant with the goniometric stipulation of VASRD §4.46 (accurate measurement) was that from the post-separation C&P examiner, and that a host of Service physician providers (including specialist consultants and the NARSUM orthopedist) documented ROM evidence distinctly refuting the single set of MEB measurements by a physical therapist of unknown proficiency and experience.  Clinically, moreover, the PT ROM findings are in marked contrast to the overall clinical course and pathology, with no ready explanation for this isolated and severe deterioration in ROM.  Members agreed, therefore, that the Service PT evidence was insufficiently probative to provide the sole support for a 40% rating recommendation; and, the preponderance of evidence favors concession of probative value to the post-separation VA evidence supporting a rating of 10%.  There was insufficient evidence for abnormal gait or contour to satisfy those 20% criteria; and, no documentation of incapacitating episodes which would provide for a higher rating under that formula.  

The Board considered whether additional rating could be recommended under a peripheral nerve code for the contended radiculopathies in evidence at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The inconsistently documented RLE sensory deficits in this case had no functional implications.  There was also no evidence indicating that there were any functional limitations due to the mild (and only intermittently documented) LLE motor weakness.  The requisite link to fitness is thus not supported by the evidence for either of the radiculopathies, and the Board cannot support a recommendation for additional disability rating for either of them.  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 of the lumbar spine condition with associated radiculopathies.

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, possible PEB reliance on AR 635-40 for rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended radiculopathies associated with the unfitting spine condition, the Board unanimously agrees that neither can be recommended for additional disability rating.  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 20140514, 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 XXXXXXXXXXXXXXXXXXXXXXX AR20160005472  (PD201402997)

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
( ) OVA