RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03466
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Helicopter Repairer, medically separated for “chronic radiating low back pain” and “chronic radiating left lower extremity pain,” rated 10% and 10% respectively, with a combined disability rating of 20%.

CI CONTENTION:  “Please 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 - 20060111	VARD - 20060814	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain…	5243	10%	Status Post Thoracolumbar Discectomy	5243	10%	STR	
Chronic Radiating Left Lower Extremity Pain…	5243-8720	10%	Radiating Left Lower Extremity Pain…	5243-8520	10%	STR	
Adjustment Disorder	Not Unfitting	Generalized Anxiety Disorder	9400	NSC	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L5-S1 discectomy in January 2005 for low back and radicular left leg pain and paresthesias (abnormal sensations) with abnormal electrodiagnostic testing (EMG) showing a left S1 nerve root lesion.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  Post-surgical MRI, dated 14 March 2005, showed degenerative disc disease with scar tissue causing severe right L5-S1 neural foraminal stenosis.  The MEB forwarded “chronic lower back pain with degenerative disk disease at L5-S1 and left leg pain, status post microdiskectomy and lumbar decompression” for PEB adjudication.

During the MEB examination (recorded on DD Forms 2807, 2808, with attached ROM study) dated 29 June 2005, 8 months prior to separation, the CI complained of continuing back problems with numbness and tingling in hands, feet and back.  On examination the CI’s range of motion (ROM) was flexion 10 degrees (normal 90) and combined ROM 95 (240) with pain in all planes of motion.  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  There was no spasm or tenderness noted.  His gait, reflexes, and motor strength were normal, but he did have subjectively decreased sensation to the lower legs.  Provocative testing for radicular signs produced back pain only.

At the orthopedic consultation on 12 July 2005, 7 months prior to separation, the CI reported back pain that went “into his buttocks, posterior thigh and then into the left foot.”  He had pain with ROM forward flexion or extension.  He complained that “both legs [went] numb in a circumferential fashion essentially from the proximal thigh distally to the toes in a non anatomic fashion.”  He reported weakness in his legs and tingling in all extremities.  He had “pain with sitting or standing greater than approximately ten minutes.”  On examination, the examiner noted that the CI gave “no significant forward bending or extension greater than probably 10 to 15 degrees due to spasms in the lower back.”  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  His gait was mildly unsteady.  He had palpable muscle spasm.  He had “diminished sensibility in all dermatomes of the lower extremity.”  The examiner noted that his “motor exam [was] somewhat equivocal secondary to the CI’s breakaway pain and guarding.”  His Achilles (ankle) reflexes were diminished.  Examination testing for radicular signs was positive.

At the time of the orthopedic clinic appointment on 21 October 2005, 4 months prior to separation, the CI reported low back pain and bilateral radicular leg pain in the region of his thigh.  The examiner noted that the CI had antalgic movement throughout the examination.  The CI had difficulty with the toe and heel walk.  The CI’s ROM flexion and extension were very limited and painful, but the examiner did not provide measurements.  His motor strength, reflexes and sensation were normal.

The MEB NARSUM, dated 7 November 2005, noted complaints of lower lumbar pain radiating into the left buttock.  The CI reported that the “pain [would] ‘shoot’ down into his left posterior leg and stop at the calf.  He also reported that he experienced “some rare numbness and tingling in his left foot primarily in the 3rd, 4th, and little toes.”  The CI reported that his pain was aggravated by lifting, prolonged standing, prolonged sitting, and prolonged walking.  Physical examination was referenced to the 29 June 2005 examination (detailed above) which was conducted by the NARSUM author.

There was no VA Compensation and Pension (C&P) evaluation conducted proximate to separation.  VA administrative documents indicate that the CI “failed to report” to his examination.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5243 (intervertebral disc syndrome), citing ROM limited by pain and “rated for spasm.”  The VA also rated the back condition 10% coded 5243 citing use of the CI’s STR.

The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the MEB and orthopedic examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the back condition, coded 5243.

Chronic Radiating Left Lower Extremity Pain.  The history and examinations pertaining to the left lower extremity pain condition were detailed in the chronic radiating low back pain condition above.  The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left lower extremity condition 10% analogously coded 5243-8720 (intervertebral disc syndrome - sciatic nerve, neuralgia), citing abnormal EMG and imaging without improvement after surgery and continued pain interfering with duty, without muscle atrophy or reproducible sensory loss and “rated as mild.”  The VA also rated the left lower extremity condition 10% analogously coded 5243-8520 (intervertebral disc syndrome - sciatic nerve, paralysis, incomplete) based on the STR, citing mild neurologic deficit.

The totality of evidence showed normal gait with at most mild weakness of the left lower extremity.  There was insufficient evidence of a moderate neurologic deficit to warrant any higher rating than that awarded by the PEB.  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 left lower extremity pain condition.

Contended PEB Conditions:  Adjustment Disorder Not Otherwise Specified.  The adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  

BOARD FINDINGS:  In the matter of the chronic radiating low back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the chronic radiating left lower extremity pain and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended adjustment disorder, the Board unanimously recommends no change from the PEB determination 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	
Chronic Radiating Low Back Pain	5243	40%	
Chronic Radiating Left Lower Extremity Pain	5243-8720	10%	
COMBINED	50%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140626, 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, AR20160017493 (PD201403466)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% 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.

	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 50% 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