RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00112
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070903

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Wheeled Vehicle Operator, medically separated for “low back pain” and “coccyx pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

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 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 - 20070409	VARD - 20070416	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Disk Desiccation at L5-S1 and Minimal Hypertrophy with Tight Sciatica and Degenerative Disc Disease	5299-5237	NSC	20070320	
Coccygeal Pain	5299-5298	10%	No VA Placement	
Neck	Not Unfitting Per 
26 June 2007 PEB Appeal Memo 		
Left Shoulder			
Right Hip			
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2005 after jarring her lower back and coccyx while riding in a military vehicle.  A 20 September 2006 electro diagnostic study was normal and showed no evidence of a lumbosacral radiculopathy (nerve root irritation or injury) or neuropathy (peripheral nerve irritation or injury) in the right lower extremity.  Somatosensory evoked potential testing on 20 October revealed some sensory nerve root involvement with a right lumbosacral radiculopathy.  Lumbar diagnostic imaging studies (MRI and X-ray) were normal.  Although there was evidence that the CI desired surgical intervention, there was no discussion of surgical options.  At the time of the rheumatology consult on 9 January 2007, the CI reported that her right leg gave way and she fell a lot.  On examination her gait was “ok” but she was noted to be using a cane.  She had “good” range of motion (ROM), but she had pain with motion testing.  She had normal spinal contour, motor strength, and reflexes.  She was diagnosed with “myofascial pain with features of fibromyalgia.”  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “low back pain” for PEB adjudication.  

The 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)	NARSUM ~6 Mos. Pre-Sep	VA  ~5 Mos. Pre-Sep	VA ~10 Mos. Post-Sep	
Flexion (90 Normal)	25	40	25	
Combined (240)	150	140	100	
Comments	Painful motion; tenderness; and antalgic gait 	Painful motion; spasm; guarding; and antalgic gait	Painful motion; tenderness; spasm; guarding; antalgic gait; abnormal spinal contour and incapacitating episodes of 2-3 weeks	
§4.71a Rating	40%	20%	40%	

The MEB NARSUM examination on 21 February 2007, 6 months prior to separation, the CI reported “sciatica down to the great toe area of the right foot.”  She also reported that her “right lower extremity was weaker than the left.”  The physical exam showed painful and limited motion as indicated in the chart above.  She had an antalgic (assuming a gait or posture to lessen pain) gait and tenderness was noted by the examiner.  There was no abnormal spinal contour.  

At the MEB examination dated 22 February 2007, 6 months prior to separation, the examiner noted decreased forward flexion of the lumbar spine. At the 20 March 2007 VA Compensation and Pension (C&P) evaluation, 5 months before separation, the CI reported that she was unable to walk or get up and that she was always in pain. The physical exam showed painful limited motion with an additional 10 degrees of forward flexion loss with repetitive use as reflected in the chart above.  Although she had spasm and guarding, the examiner reported that these were not severe enough to be responsible for her antalgic gait, or cause abnormal spinal contour.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were positive, but the exam was silent as to which side was affected.  Her motor strength was diminished at 4/5 in almost all of the right lower extremity muscles, sensation was slightly diminished, but her reflexes were normal.  There were no incapacitating episodes.  She was functionally limited to only being able to stand for a few minutes or walk a few yards.  She occasionally used a cane for walking.  At the 16 July 2008 VA C&P exam, 10 months after separation, the CI reported that she had symptoms of numbness, paresthesias, leg weakness, falls, and unsteadiness.  She reported that she had a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain due to her low back condition.  She also reported that she had severe flare-ups of her spinal condition every 1 or 2 months that lasted 2-4 weeks precipitated by prolonged walking, standing, or sitting.  Physical exam showed painful limited motion as reflected in the chart above.  There was no additional limitation with repetitive use. Although she had spasm and guarding, the examiner noted that these were not severe enough to be responsible for her antalgic gait or her abnormal spinal contour (lumbar flattening).  Her motor strength was diminished at 4/5 in almost all of the right lower extremity muscles, sensation was slightly diminished to light touch on her right lower extremity, but her reflexes were normal. She walked with an antalgic gait and used a cane, brace and/or wheelchair.  The examiner noted that she had had 4 incapacitating episodes within the past 12 months for a total of 2-3 weeks.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% under the 5237 code (lumbosacral strain), citing ROM limited by pain with likely application of AR 635-40.  The VA originally found the back condition to be not service connected.  It later rated the back condition 40% under the 5237 code, based on the VA C&P examination 10 months after separation, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees reported on the NARSUM and 16 July 2008 VA C&P examinations.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI complained of radiating pain, and the treatment records documented a subtle decrease in motor strength, in the right lower extremity.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  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.  While there was some evidence of sensory nerve root involvement, there was no evidence of motor nerve root/nerve deficits by electro diagnostic studies.  There was no objective evidence of lumbar nerve root involvement by diagnostic imaging.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the back condition, coded 5237.  

Coccyx Condition.  According to STRs and the MEB NARSUM, the CI’s condition began in October 2005 after jarring her lower back and coccyx while riding in a military vehicle.  In the NARSUM the CI complained of coccygeal pain since October 2005 training exercises.  Symptoms did not resolve with activity modification, physical therapy (PT), epidural steroid injections, and medication (Vicodin and Skelaxin).  The physical examination revealed an antalgic gait and marked coccygeal tenderness.  The diagnosis listed coccyx pain.  The 20 September 2008 sacrum and coccyx X-rays were normal except for minor anatomic variation (minimal subluxation [incomplete dislocation] between anteriorly pointed 1st and 2nd coccygeal segments).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5298 code (coccyx, removal of) citing coccygeal pain secondary to jarring injury, coccyx tenderness to palpation, and rated as analogous to coccyx, removal of with painful residuals.  The VA did not address the coccyx based on the VA C&P exam 10 months after separation.  There was minor anatomic variation of the coccyx by X-ray and tenderness for consideration of the 10% rating under 5298 (coccyx, removal of:  partial or complete, with painful residuals).  The Board agreed there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.40, §4.45, and §4.59).  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 adjudication for the coccyx condition.  

Contended PEB Conditions.  Neck, left shoulder, and right hip conditions.  The neck and left shoulder conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  While the right hip condition was implicated in the commander’s statement, it was not profiled or judged to fail retention standards.  Right hip X-rays and ROM were “normal.”  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the coccyx condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended neck, right shoulder, and right hip 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5237	40%	
Coccygeal Pain	5299-5298	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140725, 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, AR20160018475 (PD-2015-00112)

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