RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03486
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Military Police, medically separated for “chronic low back pain due to degenerative disk disease with radicular pain without neurologic abnormality” and “right ankle dorsiflexion 10 degrees, plantar flexion 15 degrees following two reconstructive procedures;” 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 - 20040614	VARD – 20050303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain …	5299-5242	10%	Herniated Disc L4-S1 with Radiculopathy	5243	10%	20040917	
Right Ankle …	5271	10%	Status Post Right Ankle Arthroscopy, Open Lateral Ligament Reconstruction	5271	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Degenerative Disc Disease with Radicular Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with microdiskectomy and laminectomy in July of 1998 for lumbar radiculopathy.  The CI had a re-injury to his back in 2003 after lifting and had back pain and radiation of pain with tingling and numbness to his left foot.  Diagnostic imaging documented disc protrusions at L4-L5 and L5-S1 with impingement on the left S1 nerve root.  The CI was not considered a candidate for additional back surgery.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for MEB.  The MEB forwarded “Chronic low back pain due to degenerative disk disease with radicular pain” for PEB adjudication.  

The range of motion (ROM) examinations 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)	MEB ~3 Mo. Pre-Sep	PT ~2 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	Physician ~3 Mo. Post-Sep	
Flexion (90 Normal)	55	50	65	60	
Combined (240)	185	170	215	Unk (missing rotations)	
Comment:  	Tenderness; abnormal gait (favoring right ankle)	Painful motion; tenderness; poor posture	Painful motion; no additional loss with repetition		
§4.71a Rating	20%	20%	10%	20%	

At the time of the neurosurgery clinic appointment on 18 February 2004, the CI reported severe low back and left hip pain with numbness in the left foot.  On examination he was noted to have normal reflexes, normal strength, but maneuvers for radicular signs could not be performed due to severe back pain.  The CI had decreased flexion, but his extension was noted to be okay.  

The MEB examination conducted on 14 May 2004 (3 months prior to separation and recorded on the NARSUM and DD Forms 2807 and 2808), noted complaints from the CI of low back pain radiating to the left buttocks accompanied by a tingling sensation and numbness of the left foot at times.  Physical examination showed positive straight leg raise testing (for radiating symptoms), normal reflexes, and ability to heel and toe walk.  There was diminished sensation to touch and pinprick on the left foot up to the left ankle.  Motor testing was normal and there was no foot drop.  The decreased ROM and remainder of the examination is summarized in the chart above.  At the time of the physical therapy clinic appointment on 3 June 2004, the CI reported that he was doing pool therapy for his severe back pain with little relief.  On examination he was noted to have poor posture, positive tenderness, pain with resistance testing and decreased ROM as noted in the chart above.  

At the VA Compensation and Pension (C&P) examination on 17 September 2004, performed 1 month after separation, the CI reported intermittent back pain with remissions.  Physical examination showed normal reflexes, strength, and sensory testing.  There was pain on forward flexion testing starting at 45 degrees, with the remainder of the examination is summarized in the chart above.  Later VA evaluations referenced a physician’s treatment note dated 24 November 2004, performed 3 months after separation, which documented limited forward flexion as charted above.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5242 code (degenerative arthritis of the spine), citing limitation of combined motion.  The VA assigned a 10% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 1 month after separation, citing ROM criteria.  A later VARD rated the back at 20% effective in November 2004 based on the forward flexion of 60 degrees documented in the physician note of November 2004.  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 physical therapy and MEB NARSUM examinations as well as the November 2004 physician’s report.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a post-surgical herniated disc with symptoms of radiating pain and left lower extremity sensory decrease documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5299-5242.  

Right Ankle Limitation of Motion.  According to STR and the MEB NARSUM, the CI underwent right ankle surgeries in December 2000 for stabilization repair, in September 2003 for synovectomy and ligament reconstruction, and in November 2003 for hardware removal.  Despite treatment, the CI’s ankle condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and so he was referred for MEB.  The MEB forwarded “Right ankle pain (post-traumatic arthritis) status post arthroscopic surgeries to instability” for PEB adjudication.  

The 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.  

Right Ankle ROM
(Degrees)	PT ~8 Mo. Pre-Sep	MEB ~3 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Dorsiflexion (20 Normal)	10	10	20	
Plantar Flexion (45)	25	15	45	
Comment	Painful motion; abnormal gait; weakness	Gait favoring right ankle; swelling	No pain with motion; no decrease on repetition	
§4.71a Rating	10%	10%	0%	

At the time of the orthopedic appointment on 8 December 2003, 8 months prior to separation, the CI reported considerable improvement in pain with the ability to wear his boot, although with some pain.  On examination the CI was noted to have tenderness over the incision with no drainage, but some swelling.  At the time of the physical therapy clinic appointment on 29 December 2003, 7 months prior to separation, the CI reported continued pain with motion and some pain with weight bearing, but pain had decreased since last surgery.  On examination he was noted to have tenderness over his surgical scar that decreased his mobility, a mildly antalgic gait, weakness and pain with motion testing, and decreased ROM as indicated in the chart above.  

At the MEB examination conducted on 14 May 2004 the CI reported that he had constant right ankle pain with swelling associated with increased activity and prolonged standing and that he wore orthotics in his shoes.  The physical examination noted an antalgic gait favoring his right ankle and limitation of motion as indicated in the chart above.  

At the VA C&P examination on 17 September 2004, performed 1 month after separation, the examiner recorded that the CI was restricted from running, jumping, marching, prolonged standing, or walking and that he wore orthotic shoe inserts that improved the stability of his ankles.  The CI reported muscle symptoms of pain and weakness in the right ankle, and right foot stiffness which improved after some activity.  Physical examination showed a normal gait, with full ROM as indicated in the chart above with no joint pain or limitation with repetition.  The examination also showed two smooth, non-tender surgical scars on his right ankle with no adhesions.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5271 (limited motion of the ankle), citing moderate limitation of motion.  The VA rated the right ankle condition 0%, coded 5271 (limited motion of the ankle), citing full active ROM without pain with motion or limitation with repetition.  The Board considered if the ankle limitation of motion was moderate or marked when considered under code 5271, limitation of ankle motion.  Although the VA C&P examination reflected full painless motion 1 month after separation, the Board agreed that the ROM examinations used by the PEB proximate to separation, as detailed above, were consistent with a moderate limitation of motion supported by the presence of an abnormal gait for the 10% rating under this code.  All Board members agreed the limitation of motion was no more than moderate supporting the 10% rating adjudicated by the PEB.  A higher rating of 20% was not indicated in the absence of marked limited ROM of the right ankle.  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  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 right ankle condition.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the right ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 Back Pain Due to Degenerative Disc Disease with Radicular Pain …	5299-5242	20%	
Right Ankle …	5271	10%	
COMBINED	30%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011353, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.   Inquiry concerning your correction of records should be addressed to tile U.S. Army Physical Disability Agency, (AHRC-00), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,