RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03967
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Health Care Specialist, medically separated for “chronic low back pain (LBP)” and “right lower extremity weakness,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends that he was given a higher rating for his conditions by the VA.  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 – 20050809	VARD - 20060411	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Hernia Ted Nucleus Pulposus, Status Post Microdiskectomy, Right L5-S1	5243	20%	20060126	
Right Lower Extremity Weakness	8520	10%	Right Lower Extremity Weakness with Foot Drop	8520	40%	20060126	
Adjustment Disorder	Not Unfitting	Adjustment Disorder, Panic Disorder and Phobias	9400	NSC	Failed to Report	
Panic Disorder						
Phobia						
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain and Right Lower Extremity Weakness.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in August 2002 after falling off a truck.  The CI had back pain, spasms and right leg radiculopathy.  Diagnostic imaging in December 2003 showed a large herniated disk at L5-S1 with moderate-to-severe impingement of the right S1 nerve root.  The CI underwent lumbar microdiskectomy surgery in February 2004, which decreased his back pain, without helping his right leg symptoms and weakness.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain with right foot drop and gastrocnemius weakness” for PEB adjudication.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 3 May 2005, 6 months prior to separation, the CI reported constant lower and mid back pain with spasms 1-2 times a month with extreme pain, locking of his back and inability to move at all and to even pass out.  He could barely use his right leg and it was painful, numb, and weak.  His right foot dragged and sometimes his leg gave out on him.  The CI used a cane and right ankle-foot orthosis (AFO) brace.  He reported seeking care for back spasms several times.  Physical examination showed a healed back scar with decreased back range-of-motion (ROM), absent right ankle reflex and motor weakness of ankle dorsiflexion and plantar flexion.  Orthopedic evaluation on 4 May 2005 showed the CI used a cane and was wearing an AFO right ankle brace.  Examination showed decreased sensation in the lateral right foot, absent right ankle reflex, and right ankle weakness (4/5) with all other strength testing as normal (5/5).  

At the NARSUM examination dated 19 July 2005, 4 months prior to separation, the CI reported continued back pain with pain and numbness on the right leg at the knee level or just below, numbness in all of his right toes, and weakness in his right foot and ankle.  He reported he usually wore an AFO ankle brace and it was difficult for him to lift his foot up.  Physical examination showed back ROM as flexion of “60, 62, 65” degrees (normal 90) and combined ROM greater than 120 degrees but not greater than 235 degrees (normal 240).  There was weakness on dorsiflexion of the right foot and great toe, and the CI could not perform heel walk on his right foot.  There was reported decrease in sensation to light touch on the lateral aspect of the right foot and all toes.  

At the 26 January 2006 VA Compensation and Pension (C&P) examination, performed 2 months after separation, the CI reported constant back pain with a back spasm once a month limiting his ability to walk over 100 yards and lift items over 10 pounds.  He missed 5 days of work due to back pain over the last six months.  Physical examination showed a well healed back surgery scar.  The CI had a heavy limp and back ROM measurement of flexion was 50 degrees and combined 200 degrees.  The examiner indicated an additional 10 degree loss of flexion should be added due to pain on repetitive motion.  Provocative testing for radiculopathy was negative.  The CI had decreased sensation to pinprick from the right proximal fibula (near the knee) to the right lateral foot and toes.  He had marked foot drop and was unable to dorsiflex the right ankle.  Right great toe dorsiflexion strength was 2/5 (normal 5/5) and right ankle plantar flexion was 4/5.  Right ankle reflex was absent.  Vibratory sensation and cerebellar function (balance) was normal.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated low back condition 10%, coded 5243 (Intervertebral disc syndrome), citing limitation of forward flexion.  The VA rated the low back pain condition 20%, coded 5243  (intervertebral disc syndrome), based on the VA C&P examination 2 months after separation, citing limitation of forward flexion.  The Board deliberated over the interpretation and probative values of the ROM evidence in evidence.  The 20% rating criteria is for forward flexion not greater than 60 degrees.  The Service ROM measurement of “60, 62, 65” degrees had a predominant value of 60 degrees when considering VASRD guidelines under §4.71a, but also showed improvement on repetition to 65 degrees.  The VA examination ROM was clearly less than 60 degrees of flexion.  The CI’s abnormal gait was attributed to his right lower extremity peripheral nerve condition and not clearly attributable to “muscle spasm or guarding severe enough to result in an abnormal gait.”  

The Board adjudged that the VA examination was closest to separation, best represented the CI’s disability picture at separation and warranted a 20% rating for forward flexion no greater than 60 degrees.  There was insufficient evidence of at least 4 weeks of incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of the next higher rating under the alternate VASRD formula for 5243.  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 chronic LBP condition, coded 5243.  

The Board then consider rating recommendation for the lower extremity condition.  The PEB rated the right lower extremity weakness 10%, coded 8520 (sciatic nerve, incomplete paralysis), citing 4/5 gastrocnemius weakness and wear of an AFO brace.  The VA rated the right lower extremity weakness 40%, using the same 8520 code, based on the VA C&P examination 2 months after separation, citing weakness and foot drop.  The Board agreed that 8520, sciatic nerve, was the appropriate nerve code.  There was active movement of muscles below the knee therefore no “complete paralysis.”  VASRD §4.124a guidance on rating diseases of the peripheral nerves states that “the term ‘incomplete paralysis’ with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis.”  There was no evidence of marked muscular atrophy to support an incomplete severe rating.  The Board therefore deliberated on if the CI’s incomplete paralysis was best described as “mild” (10%), “moderate” (20%) or “moderately severe” (40%).  

The STR documented right ankle weakness of 4/5; foot drop, absent right ankle reflex; sensory deficit of the toes, foot and distal leg; and, requirement for an ankle brace.  The VA examination documented 4/5 right ankle dorsiflexion strength and 2/5 great toe dorsiflexion strength, a marked right foot drop, severe limp (no longer using brace), an inability to perform heel walk, and sensory deficits.  Given the documented weakness, sensory deficit, absent reflex, and functional loss, the Board adjudged that the CI’s disability picture at separation was best described by the moderately severe incomplete sciatic nerve paralysis 40% criteria.  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 right lower extremity weakness condition, coded 8520.  

Contended PEB Conditions:  Panic Disorder, Phobia and Adjustment Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  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.  None of the conditions were profiled or judged to fail retention standards.  The commander’s statement noted that the CI had received counseling to deal with the emotional distress from his condition.  The psychiatric NARSUM indicated the CI had experienced increasing depressive symptoms and was started on medications which were adjusted in June 2004.  Although there had been initial helpless, hopeless feelings and thoughts of not living when he first had to deal with accepting his pain and limitations, the CI had improved and he no longer had depressive symptoms.  On mental status examination there was no suicidal or homicidal ideation, there were some reported panic symptoms (“much easier to deal with”) and some “some agoraphobia around driving a car because he does not trust his lower extremity imitations to allow him to manipulate clutch and brake adequately.”  The psychiatrist indicated the panic disorder secondary to his physical limitations was in partial remission.  The phobia about driving related to inability to trust his physical condition to allow him to be a safe driver (“some agoraphobia around driving a car because he does not trust his lower extremity imitations to allow him to manipulate clutch and brake adequately”).  Global assessment of functioning was 75 (80 – 71:  If symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  The conclusion was that the diagnoses were not unfitting for military service, did not require profile restrictions, and there was no impairment for social and industrial functioning from a psychological standpoint.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for 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, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the right lower extremity weakness condition, the Board unanimously recommends a disability rating of 40%, coded 8520 IAW VASRD §4.124a.  In the matter of the contended panic disorder, phobia and adjustment disorder 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 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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	
Right Lower Extremity Weakness	8520	40%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140826, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20160013325 (PD201403967)

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