RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03577
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20080617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Satellite Communication Systems Operator/Maintainer, medically separated for “chronic low back pain with L5/S1 protruding disc,” with a disability rating of 10%.  

CI CONTENTION:  “Please Consider All Conditions.”

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 – 20080306	VARD - 20080918	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Protruding Disc, Lumbar Spine, Status Post Discectomy	5237	10%	STR	
Depression	Not Unfitting	Depression	9400	NSC		
Alcohol Abuse		No VA Entry	
Tobacco Use		No VA Entry	
Syncope		Syncope Episodes	8199-8108	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The service treatment record (STR) supplemented and substantiated the Medical Evaluation Board (MEB) narrative summary dated 28 January 2008, which indicated the CI complained that his “lower back, from L5-S1 has re-herniated again since surgery,” which caused him discomfort and he could not do his job.  Low back pain began while deployed in 2000.  Treatment in 2001 and the years thereafter were conservative with nonsteroidal anti-inflammatory drugs (NSAIDs) and muscle relaxants.  In May 2003 the CI had several emergency room visits and in June 2003 he had not only left leg numbness, but radicular pain, which was treated with an epidural steroid injection.  A CT [computer tomography] scan in July 2003 showed a protruding disc as L5-S1 with nerve encroachment.  Treatment consisted of a left S1 nerve block and physical therapy, which provided limited relief.  Magnetic resonance imaging (MRI) in December 2004 showed extruded disc fragments L5-S1 with displacement of S-1 nerve root, but an MRI in January 2005 of the sacrum and coccyx was unremarkable.  In February 2005 the CI underwent an L5-S1 discectomy and the pain resolved completely “for a while” but numbness on the outside of his left foot persisted.  In March 2006, low back pain and left radicular pain recurred and X-rays showed degenerative disc disease most severe at L5-S1.  The CI was involved in an accident where his vehicle was rear ended and he developed muscle spasms.  An MRI in May 2006 showed a focal left paracentral herniated nucleus pulposus at L5-S1 with left foraminal narrowing.  Low back pain persisted with decreased sensation in the S-1 distribution and loss of the left ankle reflex.  An MRI in March 2007 demonstrated degenerative disc disease greatest at L5-S1 with left greater than right foraminal narrowing, post-surgical changes in the L5-S1 region that contacted the S-1 nerve root, and diffuse facet arthropathy.  

A neurosurgeon in March 2007 opined the symptoms were “scarring and segmental instability” but the CI was not considered to be a good candidate for fusion surgery.  Follow-up by a chiropractor and a pain management specialist noted that where epidural steroid injections were given had reduction of pain for brief periods of time.   The CI was considered for a percutaneous disc compression procedure, but it was not found to be effective in the post laminectomy syndrome.  Radiofrequency ablation and nerve stimulator options were discussed in December 2007.  Range of motion (ROM) measurements were performed in December 2007 by a physical therapist and are in the chart below.  The CI rated his lower back pain at 3/10 (10 being the worst pain) and described it as dull and constant, which improved with an NSAID, muscle relaxants, and Tylenol 3 with codeine (acetaminophen, a pain reliever and codeine, a narcotic).  Facet block and posterior primary ramus procedures to mitigate the pain were carried out in January 2008; and, a spinal cord stimulator was implanted in April 2008 with excellent results and no further need for pain medication. 

The first LIMDU (limited duty) was issued in December 2006 for 6 months for L5-S1 herniated disc and S1 radiculopathy with limitations of no running, no physical training, and no lifting greater than 20 pounds.  A permanent L3 profile issued in May 2007 was issued for a herniated disc with limitations of moving with a fighting load and constructing an individual fighting position as well performing a 2-mile run and sit-ups.  A comment noted the profile did not impact the CI’s current assignment; however, assignment to the “tactical signal unit may present severe challenges.”  The commander’s statement dated 13 September 2007 indicated the CI was non-deployable, although he was able to perform his duties at a communications station and passed his alternative physical fitness test in September 2007.  However, the commander could not say how the CI’s medical condition would hold up where the physical demands would be much greater.  On the MEB examination, DD Form 2807-1 dated 13 September 2007, the CI reported low back pain since 2000 with L5-S1 numbness in the left side of left foot and left calf and surgery in 2005.  The MEB physical examiner noted on DD Form 2808, dated 27 September 2007, decreased ROM in lumbar spine flexion, a 3 cm scar on S1, and slight weakness of the left lower extremity.

A VA Compensation and Pension (C&P) examination was not performed proximate to separation, but a remote VA C&P examination performed on 17 February 2010, 20 months after separation, reviewed the CI’s history and noted that he had a pain stimulator implanted in April 2008 and still had it in place.  The CI denied any low back pain and had stiffness that occasionally went to the right buttock, posterior thigh to the right knee. Pain was sporadic, lasted a day without numbness in the right leg, but he had constant numbness in the left 4th and 5th toes and lateral left calf.  He used no brace or assistive device and had no incapacitating episodes in the prior year.  Examination of the lumbar spine revealed a normal curvature, no tenderness to palpation and scars from the stimulator implantation and discectomy.  ROM measurements were flexion 0-90 degrees, extension 0 to 25 degrees, pain, right [and] left lateral flexion and rotation 0 to 25 degrees; all ROMs were without pain; and there was no loss of function or ROM with repetition. Neurological evaluation was unremarkable except for slight decreased pinprick sensation in the left lateral calf.  There was no spasm or muscle atrophy present and the gait was normal.  Straight leg raising (to determine nerve irritation) caused back pain on the left and no pain on the right. X-rays showed degenerative disease of L5-S1 with osteophytes.

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.

Thoracolumbar ROM
(Degrees)	MEB ~5 Mo. Pre-Sep
	VA C&P ~20 Mo. Post-Sep
(20100217) p.138	
Flexion (90 Normal)	(65)70,66,65	0-90	
Extension (30)	(25)24,25,26	0-25	
R Lat Flexion (30)	(25)25,25,25	0-25	
L Lat Flexion (30)	(25)25,26,26	0-25	
R Rotation (30)	(30)30,30,30	0-25	
L Rotation (30)	(30)30,30,30	0-25	
Combined (240)	200	215	
Comment	Heel and toe walking normal	No painful motion; gait normal	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5243 (Intervertebral disc syndrome) for chronic low back pain and the VA assigned a 10% rating using code 5237 (Lumbosacral strain) for a protruding disc of the lumbar spine status post discectomy based on the STR.  The Board sought a route to a higher rating, but was unable to do so in the absence of ankylosis, a diminished ROM for flexion less than or equal to 60 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation.  The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications, albeit there was diminished sensation in the left S-1 nerve distribution, and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability 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 chronic low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that depression, alcohol abuse, tobacco use, and syncope were 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.  The depression, alcohol abuse, tobacco use, and syncope profiled or implicated in the commander’s statement and were not judged to fail retention standards.  

Depression.  An emergency room note dated 3 September 2004 indicated the CI was brought by a supervisor after he made a statement about hurting himself, but he noted he was just mad about not getting leave.  He was found to be stable and was referred to mental health.  A psychiatric addendum for the MEB dated 28 January 2008 indicated the CI was seen on 6 November 2007 following a command referral.  The CI reported he had financial difficulties and was stressed at work and as a result snapped at work.  He denied depression, but admitted to being irritable at times due to his chronic back pain and was anxious about life changes including getting out of the Army and concern for his future.  Work had not been stressful after reassignment, but he was overwhelmed with all the appointments and future employment.  The diagnosis of depressive disorder NOS [not otherwise specified] occupational problem-resolving was made with a Global Assessment of Functioning of 67 (some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well).  The CI was advised to continue therapy and follow-up for medication management.  His condition was deemed medically acceptable.

Alcohol Abuse.  He was diagnosed on 20 November 2007 by the ASAP [Army Substance Abuse Program] and had a history of a conviction for driving while intoxicated in 2002 with a license suspension for an unknown time period.  He denied alcohol use according to the psychiatric addendum (see above).  A history of alcohol abuse is not a physical disability.

Tobacco Use.  The CI had a history of smoking a pack a day for several years.  He indicated he was enrolled in a smoking cessation program and anticipated starting Wellbutrin (bupropion) for treatment.  Tobacco use is not a physical disability.

Syncope.  The CI had a near syncope episode in June 2004 and had a syncopal episode in July 2006 and was hospitalized overnight and evaluated by Cardiology with an echocardiogram, which was normal with a trace of tricuspid regurgitation and with a graded exercise test, which was normal.  A chest X-ray revealed no evidence of acute cardiopulmonary disease.  A 24-hour Holter monitor revealed normal sinus rhythm, a rare premature atrial contraction and a single premature ventricular contraction without any recorded symptoms.  An EEG [electroencephalogram] was normal with no epileptiform activity in December 2006 and a CT angiogram of the head and neck was unremarkable in February 2007.  A neurologist in March 2007 evaluated the CI’s syncopal episode in July 2006 and noted the CI was standing on his shift and without warning the CI awoke on the floor without any tongue biting or bowel or bladder incontinence.  He had been unconscious for 10-15 seconds and there was no witnessed tonic clonic activity (a sign of a grand mal seizure).  The CI’s back pain history and treatments were also reviewed.  Neurologic examination was normal except decreased sensation of the left S1 distribution.  The neurologist opined that the syncope was consistent with vasovagal syncope and the CI had no recurrent syncopal episodes.

The aforementioned were reviewed and considered by the Board.   There was no performance based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression, alcohol abuse, tobacco use, and syncope conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140731, 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 XXXXXXXXXXXXXXXXXXXX, AR20160008188 (PD201403577)

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