RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04256
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Military Police, medically for “intervertebral disc syndrome, L5-S1” with a disability rating of 20%.

CI CONTENTION:  L5-S1 disc herniation and bilateral radiculopathy have worsened.  The applicant’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 - 20090311	VARD - 20080618	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc 
Syndrome, L5-S1	5243	20%	L5-S1 Disc Herniation (Also Claimed as Low Back Condition)	5243	40%	20090714	
			Left L5 Radiculopathy (Also Claimed as Left Leg, Hip, and Knee Condition)	8599-8520	10%	20090714	
			Right L5 Radiculopathy	8599-8520	0%	20090714	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Intervertebral Disc Syndrome (IVDS), L5-S1.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s IVDS condition (disc disease causing back pain and sciatica) began in August 2003 while deployed to Iraq when she jumped from a Humvee with full battle gear on while under attack.  A magnetic resonance imaging report showed a small, broad, central disc herniation at the L5-S1 vertebral level.  An electromyography (EMG) study demonstrated normal nerve conduction and reflex latency bilaterally; however, the study concluded there was evidence of a bilateral L5 radiculopathy.  Despite treatment, the IVDS condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty.  She was referred for a MEB which forwarded “low back pain with radiculopathy” for PEB adjudication.

At a primary care examination on 25 June 2008, 10 months prior to separation, the CI reported her chronic back pain improved with medical treatment.  Physical examination revealed “intact” ROM.  Reflexes and sensation were 2+ bilaterally.  The examiner noted no gross motor or sensory deficit.  The MEB NARSUM examination on 15 September 2008, 7 months prior to separation, noted complaints back pain and a feeling of electrical shock down to her leg (side not indicated). Physical examination showed an antalgic gait, and thoracolumbar muscle spasms and tenderness.  Bilateral straight leg raises were positive.  ROM was flexion to 5 degrees (normal 90) and combined ROM was 30 or 5 degrees for all movements (normal 240).  Neurologic examination demonstrated 5/5 in all lower extremities.  Deep tendon reflexes were 2/4.  Sensory examination revealed decreased light touch and pinprick bilaterally at the L5-S1 dermatome distribution (non-radicular).

At the VA Compensation and Pension (C&P) examination on 27 May 2008, performed 11 months before separation, the CI reported she was employed full time as a teacher and had lost > 20 days from work over the past 12 month period due to her low back pain.  She reported increased urinary frequency and urgency (possible medication related), but no incontinence.  Back pain was described as “burning”, moderate and occurring 1 to 6 days per week.  The CI experienced flare ups 2-3 times a week, lasting 1 to 2 days in duration, relieved by TENS (electrical stimulation) unit and medication.  The CI reported having 5 incapacitating episodes lasting 3 days each, over the preceding 12 month period.  She used a back brace (not evident during examination).  Physical examination revealed thoracolumbar ROM of flexion to 40 degrees with a combined ROM of 110 degrees.  Repetitive ROM testing produced objective evidence of painful motion with loss of motion up to 30 degrees or flexion 10 degrees (positive DeLuca).  The CI’s posture and spine curvature were normal without muscle spasm or guarding.  Muscle strength was 5/5 bilaterally except ankle and toe movements showed 4/5 strength bilaterally.  Muscle tone was normal and there was no atrophy present.  There was some sensory loss of the lower extremities.  Reflexes were normal bilaterally.

At the VA C&P examination on 14 July 2009, performed 3 months after separation, the CI reported progressively worse back pain.  She was employed full-time as a teacher and had claimed to have lost 13 weeks of time due to low back and neck pain.  She reported increased urinary frequency and urgency, but no incontinence.  She experienced numbness, paresthesia, leg/foot weakness, unsteadiness and falls (reportedly leg weakness caused CI to fall to the ground several times per week).  Back pain was described as “burning and electric type” severe and constantly occurring on a daily basis.  Pain radiated to her bilateral legs, left > right.  The CI experienced flare ups on a weekly basis, lasting 3 to 7 days in duration, relieved by TENS unit and medication.  The CI reported having 40 incapacitating episodes lasting 48 hours each, over the preceding 12 month period.  She used a back brace and crutches (not evident during examination).  Physical examination recorded ROM of flexion to 25 degrees and combined ROM of 140 degrees.  Repetitive ROM testing produced objective evidence of painful motion, but there were no additional limitations after three repetitions (negative DeLuca).  Posture was normal but lumbar flattening, muscle spasm, and guarding were noted bilaterally.  The examiner noted that muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour.  Muscle strength was 5/5 bilaterally except ankle and toe movements showed 4/5 strength bilaterally.  Muscle tone was normal and there was no atrophy present.  There was some sensory loss of the lower extremities.  Reflexes were normal bilaterally.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated IVDS condition 20%, coded 5243 (intervertebral disc syndrome), citing limited motion.  The VA rated the IVDS condition 40%, also coded 5243 based on VA C&P examination 27 May 2008, 11 months before separation, citing incapacitating episodes.  The subsequent 2008 VARD did not change the spine 40% rating.  The VA also rated left and right L5 radiculopathy 10% and 0%, respectfully, analogously coded 8599-8520 (sciatic nerve paralysis).

The Board agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees reported by the MEB NARSUM and VA examinations most proximate to separation.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  The evidence shows the CI had IVDS and experienced incapacitating episodes due to acute signs and symptoms that required treatment and bed rest prescribed by a physician.  A review of the service treatment records showed that the total duration of incapacitation over the 12 months prior to separation was at least 2 weeks but less than 4 weeks supporting a 20% rating.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (MEB NARSUM and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  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 no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  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 recommends a disability rating of 40% for the low back condition, coded 5243.

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome (IVDS), L5-S1 condition, the Board unanimously recommends a disability rating of 40%, 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; 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	RATING	
Intervertebral Disc Syndrome, L5-S1	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141105, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018318 (PD201404256)

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 40% 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 40% 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