RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03882
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050715

SUMMARY OF CASE:   Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-4, Light Wheel Vehicle Mechanic, medically separated for “residual right leg pain” and “chronic low back pain [LBP]” rated 10% and 0% respectively, with a combined disability rating of 10%.

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 based upon a 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 - 20050626	VARD - 20050203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual Right Leg Pain	8520	10%	Sciatic Nerve Neuritis…	8620	20%	20041022	
Chronic Low Back Pain	5243	0%	Intervertebral Disc Syndrome	5243	20%	20041022	
Major Depression	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain to Include Residual Right Leg Pain Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a lumbosacral discectomy in September 2003 secondary to LBP extending into the right leg.  Post-operative spinal X-rays revealed multi-level lumbosacral degenerative disc disease (DDD) without frank herniation and or nerve root impingement.  Despite aggressive physical therapy (PT) his LBP continued and his residual right leg pain progressively worsened.  His rehabilitative efforts failed to meet the physical requirements of his military specialty and he was referred to an MEB.  The MEB forwarded “chronic back and leg pain” to the PEB for adjudication.  

During the MEB NARSUM performed in November 2004, 8 months before separation, the CI reported a constant 4/10 LBP with right leg pain noting occasional worsening in intensity to 10/10.  Lacking a “definitive reason” for the CI’s persistent symptoms, the listed diagnosis was post-laminectomy syndrome.  His MEB physical examination (PE) revealed normal thoracolumbar range of motion (ROM) excepting rotation, which was not stated.  Painful motion was in evidence as well as a mild antalgic gait.  The examiner rated the CI’s LBP as “moderate” and “frequent”.  A PT ROM measurement performed on 03 June 2005, 6 weeks prior to separation, revealed globally decreased thoracolumbar ROM without comment in regards to painful motion.  At the VA Compensation and Pension (C&P) examination on 22 October 2004, 9 months prior to separation, the CI reported persistent back pain, stiffness, soreness, aching, and tenderness as well as right leg pain.  His PE revealed near normal, but painful ROM of the thoracolumbar spine.  The goniometric 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)	VA C&P ~9 Mo. Pre-Sep
(20041022) 	MEB ~8 Mo. Pre-Sep
(20041103) 	PT ~1 Mo. Pre-Sep
(20050603) 	
Flexion (90 Normal)	85	90	65	
Extension (30)	25	30	20	
R Lat Flexion (30)	25	Not Stated	20	
L Lat Flexion (30)	25	Not Stated	20	
R Rotation (30)	25	30	20	
L Rotation (30)	25	30	20	
Combined (240)	210	-	165	
Comment	painful motion	(+) SLR on right;
antalgic gait (mild)	-	
§4.71a Rating	10%	10%-20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB separately assigned a 10% rating under code 8520 (sciatic nerve; incomplete paralysis) and 0% coded 5243 (intervertebral disc syndrome [IVDS]) for a combined 10% rating, citing residual nerve symptoms and full ROM without local tenderness or spasm, respectively.  The VA assigned a combined 40% rating noting separate ratings of 20% coded 8620 (neuritis; sciatic nerve) and 20% coded 5243, citing a mild neurologic finding as well as impaired functionality due to IVDS.  

The Board first agreed that the clinical PT examination performed near the time of separation clearly demonstrated decreased ROM to support a separate 10% rating for the LBP condition.   Additionally, all Board members agreed that the separate residual right leg condition did not rate to any degree greater than the PEB’s current 10%.  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’s adjudication for the residual right leg pain condition and a modification to 10% for the chronic low back pain.    

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the major depression condition was not unfitting.  The condition was listed on the CI’s profile and there was no commander’s statement contained in the case file.  The PEB noted that the mental health (MH) diagnosis originated while the CI was not on active service and did not indicate any evidence of permanent service aggravation.  Additionally, the PEB cited, “To some extent it [the MH condition] appears to be related to the back condition, and as such is also not considered ratable.”  The MH condition was reviewed and considered by the Board.  The case file contained numerous psychiatric evaluations that indicated a persistent diagnosis of “adjustment disorder with depressed mood” and later a “personality disorder, not otherwise specified” that extended from the CI adjusting to the inability to continue performing an occupation as a firefighter.  Despite maintaining a MH diagnosis, there was no performance based evidence from the record that any MH diagnosis 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’s fitness determination for the contended major depression condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the residual right leg pain condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended major depression condition, 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Residual Right Leg Pain	8520 	10%	
Chronic Low Back Pain	5243	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140824 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

08 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
 (PD201403882)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA