RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03561
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060705

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Petroleum Supply Specialist, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  The applicant asks that all conditions be considered.  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 20060518	VARD - 20070829	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with a Fall on Obstacle Course…	5243	10%	Herniated Disc, Lumbosacral Spine with Associated Sciatica	5243	10%	20070808	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain began in February 2005 after jumping from a tall stand on the obstacle course.  In addition to back pain, he complained of pain radiating down his left leg.  Radiographic (X-ray) studies on 22 April 2005 showed mild disc space narrowing at the lumbosacral junction but no associated endplate changes to confirm degenerative change.  There was no evidence of trauma or significant arthritic change.  Magnetic resonance imaging on 27 August 2005 showed intervertebral disc bulging at L4-5, with mild narrowing of the neuroforamina (space through which the spinal nerve root passes).  There was left paracentral disk protrusion at L5-S1 which severely narrowed the left neural foramen and indented the ventral thecal sac.  There was also associated mild right neuroforaminal narrowing at that level.  Neurosurgery evaluation on 30 November 2005 (7 months prior to separation) was for low back pain with left leg radiculopathy that had been diagnosed as sciatica.  Exam documented positive provocative testing on the left (straight leg raise-SLR; and contralateral right SLR) with pain not going below the knee.  Reflexes were symmetric with slight hyperreflexia at both knees.  There was “no motor weakness noted slight sensory deficit at L4 L5 on left subjectively but none at S1 ….”  The CI was referred to anesthesia/pain management.  

There was no surgical indication and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “degenerative disc disease of lumbar spine w/herniated nucleus pulposus @ L5-S1 level resulting in severe narrowing of Ieft neuroformen complicated by chronic back pain Ieft leg radicular pain reduced sensation and weakness in left leg” 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	VA C&P ~14 Mo. Post-Sep	
Flexion (90 Normal)	50	90	
Combined (240)	185	210	
Comments	Painful motion; tenderness; inclinometer	Painful motion	
§4.71a Rating	20%	10%	

The MEB NARSUM examination on 12 April 2006 (3 months prior to separation) noted complaints of low back pain that radiated into the left leg with tingling and intermittent left leg weakness.  The pain was constant and at its best was 4-5/10 scale in intensity and at its worst 7-8/10.  When the pain was at its worst the CI noted he could not perform normal duties.  The pain was aggravated by standing, sitting, or walking for long periods, going up and down stairs, squatting, lifting, twisting, carrying, and bending.  He was awakened at night due to his back pain.  The pain impacted his daily activities such as putting on his pants, boots, and socks.  Physical exam showed reduced sensation in the left lateral foot and lower leg.  There was weakness in the hamstrings after performing repetitive climbing.  Reflexes were normal.  The MEB NARSUM examiner measured the lumbar ROM with an inclinometer (charted above) and cited the November 2005 neurosurgery exam findings above.  

At the VA Compensation and Pension (C&P) examination on 8 August 2007, performed 14 months after separation, the CI reported constant pain to his lumbosacral spine area that radiated down his left leg, sometimes to his left foot.  The pain was described as sharp with the intensity as 3/10 scale.  When the pain flared, intensity was 9/10 scale occurring once every 1½ -2 weeks lasting for 3-4 days each time.  The pain was relieved by walking and stretching.  He stated he needed to sit down due to left leg numbness after walking for an hour.  He reported his condition limited his driving ability.  He could only drive for an hour before having to get out of the vehicle due to back pain.  After resting his back appropriately he was able to continue with his daily activities.  Of note, the CI did not mention lower extremity weakness as a dimension of his condition.  Physical exam showed normal gait and posture.  Lower extremity sensation and reflexes were normal.  There was no tenderness to palpation, redness, or swelling.  Thoracolumbar ROM was limited after repetition due to pain as recorded in the chart.  Provocative testing for radiculopathy (tripod test) was positive to the left.  

The record indicated that the CI underwent back surgery in August 2008; 2 years post separation, with later electrodiagnostic testing (EMG) documenting a left L5 - S1 radiculopathy and a second back surgery in May 2009.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10% coded 5243 (intervertebral disc syndrome), citing painful limitation of motion, as well “Neurosurgery did not find any motor weakness.  There was a slight L4/L5 sensory deficit.”  The VA also rated the chronic low back pain condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 14 months after separation, citing incapacitating episodes having a “duration of at least one week but less than 2 weeks during the past 12 months.”  The VA stated a noncompensable rating for the neurologic condition (included in the back evaluation) as the VA neurologic exam was normal with the exception of complaints of numbness and radiating pain.  

The Board deliberated on the probative value of the exams in evidence and the totality of the record.  The MEB exam was significantly closer to the date of separation, aligned with the disability picture portrayed in the remainder of the treatment record and, therefore was adjudged to have the highest probative value for rating.  The documented limitation of flexion of the MEB NARSUM exam of flexion of 50 degrees following repetition, although using an inclinometer versus a goniometer, was adjudged as meeting the 20% criteria for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

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 MEB NARSUM examination.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with left lower extremity radicular pain and there were symptoms of radiating pain documented in the treatment record.  The neurosurgery evaluation was 7 months prior to separation and indicated normal strength with slow gait, no absent reflexes, and left leg sensory changes which would not rise to the level of impacting duty performance.  The NARSUM exam was 3 months prior to separation and documented left leg sensory deficits as well as weakness on repetitive climbing, and indicated that left leg weakness was reported as intermittent by the CI.  Radiographic studies supported some level of radicular nerve irritation or involvement.  The physical exams in evidence (neurosurgery, MEB NARSUM and VA C&P proximate to separation were mixed on objective findings of radiculopathy that would impact duty performance.  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 mixed evidence in this case that motor weakness existed to a degree that could be described as functionally impairing.  The PEB adjudication was adjudged as indicating an assessment of the radicular findings as being not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Although there was some doubt if the left leg radiculopathy would have been unfitting, the Board adjudged that the preponderance of evidence was not overcome in order to recommend an unfit and additionally ratable peripheral nerve disability rating.  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 recommended a disability rating of 20% for the chronic low back pain condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140725, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160008187,

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical
Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

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

Sincerely,

Enclosure