RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00006
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051024

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “chronic back pain and right leg weakness,” with a disability rating of 10%.

CI CONTENTION:  His back pain should have been rated at 20% and his right leg weakness should have been separately rated at 10% with a combined rating of 30%.  Counsel'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 - 20050614	VARD - 20051121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain and Right Leg Weakness	5241	10%	Lumbar Spine Degenerative Disc Disease	5242	20%	20050516	
			Right Lower Extremity Hypesthesia	8599-8520	10%	20050516	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Back Pain and Right Leg Weakness.  The PEB combined the back pain (degenerative disc disease of the lumbar spine requiring surgery, with subsequent chronic pain) and right leg weakness (dense hypesthesia of the lateral aspect of the right foot (S1 distribution) and mild right leg weakness secondary to diagnosis #1) conditions as a single unfitting condition coded 5241 (spinal fusion) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was medically evacuated from theater for back and leg radiculopathy following a motor vehicle crash.  The CI underwent back surgery (L5/S1 cage fusion) in December 2003 for severe degenerative disc disease (DDD) and herniated disk (HNP) with back pain and right lower extremity radicular symptoms.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “degenerative disc disease of the lumbar spine requiring surgery, with subsequent chronic pain” and “dense hypesthesia of the lateral aspect of the right foot (S1 distribution) and mild right leg weakness secondary to diagnosis #1” for PEB adjudication.

The MEB NARSUM examination on 31 March 2005, 7 months prior to separation, noted complaints of lower back and right leg pain at aggravated by activities or prolonged sitting or walking.  Physical examination showed lumbar muscle spasm with tenderness and decreased painful range of motion (ROM) for flexion to 55 degrees (normal 90) and total combined ROM of 190 (normal 240).  There was a dense hypesthesia of the lateral aspect of the plantar surface of the right foot and hip flexion weakness at 5-/5 for the right hip flexor.  The neurosurgeon’s focused examination showed weakness at 5-/5 in the right hamstring and gastrocnemius muscles.  He had absent sensation to light touch and pin prick in the lateral aspect of the right foot.  Deep tendon reflexes were 2+ (normal) throughout.

At the 16 May 2005 VA Compensation and Pension (C&P) evaluation, performed 5 months before separation, the CI reported low back pain with radicular symptoms and inability to run.  Physical examination showed normal gait, posture and spinal contour.  There was painful and limited ROM of flexion to 45 degrees and combine ROM of 155 degrees.  There was no back tenderness or spasm.  Reflexes were normal and symmetric, strength was normal (5/5) with strong dorsiflexion of the great toe bilaterally.  The CI could walk on heels and toes, tandem walk (foot placed behind heel of opposite foot), and had a normal gait.  There was decreased sensation on the lateral aspect of the right leg down to the foot and the fourth and fifth toes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain and right leg weakness condition 10%, coded 5241 (spinal fusion), citing forward flexion of 55 degrees and 5/5 motor strength in the right leg.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine) based on the VA C&P examination 5 months before separation, citing decreased ROM with flexion of 45 degrees.  The VA also separately rated the right leg hypesthesia 10%, analogously coded 8599-8520 (sciatic nerve paralysis, incomplete, mild), citing mild symptoms of right leg weakness and dense hypesthesia.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on all examinations proximate to separation.  There was no documentation of incapacitating episodes which would provide for a higher rating under the formula for intervertebral disc syndrome.  

The Board considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Right leg weakness and sensory loss were part of the PEB’s unfitting disability description, but were not separately rated, as noted above.  Radiographic studies and objective findings supported radicular nerve irritation or involvement and physical examinations proximate to separation revealed mild right leg weakness (5-/5) at the neurosurgery and NARSUM examinations, with a dense sensory deficit noted on all examinations proximate to separation.  The Board deliberated if the objective findings of radiculopathy in this case would impact the duty performance of a Motor Transport Operator.

The commander’s statement and profile did not specifically note any radiculopathy, leg weakness or sensory loss.  The CI was able to walk on heels and toes, tandem walk with a normal gait as documented by the VA C&P examination 5 months prior to separation with no subsequent examination or treatment noted prior to separation.  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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board consensus was therefore that an 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 20% for the back pain coded 5241. 

BOARD FINDINGS:  In the matter of the back pain and right leg weakness condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a; additionally, the Board majority does not recommend the right leg weakness condition as unfit for additional disability rating.  The single voter for dissent submitted the appended 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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain and Right Leg Weakness	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141201, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority voter recommends that the unbundled right leg weakness condition be found reasonably unfitting and rated 10%, in addition to the back pain being rated at 20% for limitation of motion.

The PEB bundled the right leg condition with the chronic back pain as unfitting, and stated “… motor strength in the right leg was 5/5 and there was absent sensation to light touch and pin prick in the lateral aspect of the right foot.”  Evidence indicated the motor strength was 5-/5 (mild weakness) and sensory deficit was as indicated by the PEB.

The right leg weakness and dense sensory loss was separately listed as not meeting standards by the MEB.  The profile was L3 and listed back pain after back fusion surgery only, but the listed limitations on the profile could not be separated between the back and leg conditions.  The commander’s statement additionally listed restrictions from climbing on vehicles which would most likely be attributable to the leg condition rather than the back condition, as well as other profile limitations which could equally apply to the back and leg conditions.  Other STR evidence did not provide any information which would discriminate the performance limitations attributable to either the low back pain over the right leg weakness and dense sensory loss.

Since undue speculation would be required to conclude that impairment from either the back condition or right leg condition would not have unacceptably interfered with MOS performance, there was therefore not a preponderance of the evidence sufficient to overturn the PEB’s unfit determination for the right leg condition.

The right leg condition should be found separately unfitting and ratable.  The right leg mild weakness and hypesthesia met the “mild” (10%) criteria under the sciatic nerve criteria IAW §4.123 and §4.120, and should be coded 8620-8520 (sciatic nerve neuritis/paralysis, incomplete, mild).

The minority voter recommends the addition of an unfitting right leg weakness condition rated 10% and coded 8620-8520 to the 20% disability rating for the back condition.  The CI’s prior determination should be modified as follows; and, the discharge with severance pay should be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain 	5241	20%	
Right Leg Weakness (and Sensory Loss)	8620-8520	10%	
COMBINED	30%	

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, AR20170002039 (PD201500006)

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