RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04086
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060522

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantryman, medically separated for “injury to back…[status post (s/p)] lumbar discectomy with left sided laminectomy,” with a disability rating of 0%.

CI CONTENTION:  Condition continues to worsen and negatively impacts daily activities.  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 on 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 - 20060208	VARD - 20061129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Injury to Back…s/p Lumbar Discectomy with Left Sided Laminectomy…No Significant Radicular Symptoms	5237	0%	S/P Lumbar Surgery, L5-S1 with Residual Scar and Intervertebral Disc Syndrome	5243	20%	20060923	
			Peripheral Neuropathy of the Superficial Peroneal Nerve due to Invertebral Disc Syndrome	8722	0%	20060923	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Injury to Back…s/p Lumbar Discectomy with Left Sided Laminectomy.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed low back pain in January 2005 after he picked up heavy weights. He was treated with a muscle relaxant and a nonsteroidal anti-inflammatory drug, but in March 2005, the lower back pain became drastically worse after lifting; and, the pain also involved left radicular symptoms down the posterior leg to the foot.  An MRI in June 2005 showed a large posterior disc extrusion compressing on the left S1 nerve root and a free disc fragment in the lateral recess compressing on the left S1 exiting nerve.  The CI underwent an L5-S1 discectomy on 27 July 2005 for a cauda equina syndrome with urinary incontinence and left leg radiculopathy.  At post-surgery follow-up on 3 August 2005, he was doing well with no further urinary dysfunction.  The radiculopathy had resolved except for when he ambulated long distances; pain was rated at 3/10.  In September 2005, the CI related some lumbar back stiffness and occasional radiculopathy, but no episodes of urinary incontinence, stating “everything there is normal now.”  Pain decreased to 2-3/10 and he was not taking any pain medication.  

The NARSUM noted that a focused examination by neurosurgery on 23 September 2005 was essentially within normal limits except for a decreased Achilles reflex on the left.  A physical therapy range of motion (ROM) study of 24 October 2005, detailed in the chart below, revealed decreased flexion and extension; flexion was accompanied by pain with no limitation at the end of the plane of motion.  On examination, pain was reported in the left sacroiliac area, which extended to the left buttock and the left posterior thigh and was described as sharp burning, dull, and throbbing, albeit better since surgery.  Exacerbating factors included forward bending, prolonged sitting, repetitive bending or twisting, and running.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated October 2005, 7 months prior to separation, the CI reported pain in the left leg and sometimes in the right.  He also described pain in the back and tingling/throbbing leg pain when sitting or standing for long periods.  The MEB physical examiner noted a well healed scar in the midline on the lower back, checked “normal” for the spine, and listed chronic low back pain as a disqualifying defect.  

At the VA Compensation and Pension (C&P) examination dated 23 September 2006, performed 4 months after separation, the CI reported trouble with bending and with lifting and pain worsened by physical activity.  Stretching and pain relievers helped and the examiner noted “He is able to function without medication.”  There was no incapacitation, but functional impairment included trouble with lifting heavy things and trouble with standing or sitting too long.  On examination, there was no muscle spasm or tenderness of the thoracolumbar spine.  Straight leg raising (to determine nerve root irritation) on the left was slightly positive with pain down the thigh; there was no ankylosis.  Flexion was to 45 degrees, when the CI stopped due to pain, and extension was to 30 degrees.  The CI also stopped at 45 degrees flexion on repetition.  

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)	PT ~7 Mo. Pre-Sep
(20051024) p. 32	VA C&P ~4 Mo. Post-Sep
(20060923) p. 118	
Flexion (90 Normal)	(80) 80,81,80	45	
Extension (30)	(25) 24,23,26	30	
R Lat Flexion (30)	(30) 26,30,29	30	
L Lat Flexion (30)	(30) 29,31,33	30	
R Rotation (30)	(30) 28,26,28	-	
L Rotation (30)	(30) 30,31,30	30	
Combined (240)	225	-	
Comment	-	Pain on motion and with repetition on flexion and left rotation	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5237 (lumbosacral strain) for an injury to the back judged to be cauda equina syndrome status post lumbar discectomy L5/S1 with a left sided laminectomy.  The VA assigned a 20% rating, coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 4 months after separation, for status post lumbar surgery L5-S1 with residual scar and intervertebral disc syndrome.  The Board sought a route to a higher rating and first noted that the PEB used a passive ROM measurement of 85 degrees but the record also listed three active ROM measurements of 80/81/80 degrees for flexion which warrants a 10% rating.  The Board then noted the significant decrement in flexion at the VA examination at 4 months post-separation; however, there was no new injury or credible medical evidence such as a postoperative complication to clarify the etiology of the limited flexion, especially since the CI indicated he was able to function without medication.  The Board members discussed the probative value of the VA examination, which was more proximate to separation.  Board members noted the CI stopped forward flexion at 45 degrees “because of pain” and the 45 degrees forward flexion measurement was reproduced on repetition; and, the remaining recorded ROM measurements were normal.  Therefore, if the flexion measurement of 80 degrees were to be used for rating, in the absence of ankylosis, forward flexion greater than 30 degrees but not greater than 60 degrees or the combined ROM 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation, the Board would be unable to find a route to a higher rating.  However, use of the flexion measurement at 45 degrees warrants a 20% rating and the Board could not find a route to a higher rating in the absence of ankylosis or forward flexion of the thoracolumbar spine 30 degrees or less.  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 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 recommends a disability rating of 20% for the low back pain condition.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  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	
Low Back Pain 	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated w/atchs
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 AR20160011829 (PD201404086)

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