RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00135
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic low back pain” and “C6/C7 herniated disk,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends that the ratings for his back and neck conditions were not commensurate with the pain and suffering caused by these conditions and they should be increased.  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 - 20040315	VARD - 20050407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Residuals Status Post Surgery and lumbar fusion, L4/L5	5243	40%	20041006	
			Radicular Symptoms, Right Lower Extremity	8699-8621	10%		
C6/C7 Herniated Disk	5243	10%	Residuals Status Post Right Hemi-Laminectomy, Cervical Spine (C-5/C-6) for Degenerative Disease and Foraminal Stenosis	5243	10%		
			Decreased Sensation in the Right C-6/C-7 Nerve Dermatome	8699-8610	20%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with diskectomy and fusion at L4-L5 in September 2001 for degenerative disk disease (DDD) and herniated disk.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “L4/5 DDD” and “continued post-operative pain” for PEB adjudication.  The undated NARSUM indicated that the CI remained in mild to moderate distress.  On examination he was noted to have normal motor strength and examination tests for radiculopathy were negative.  The CI had limited range of motion, but the examiner did not specify the degree of limitation.  

The NARSUM dated 30 July 2003, 13 months prior to separation, noted complaints of back pain and spasm.  The CI reported episodes of significant pain that went down his back and into his hips.  The CI noted that he had had a couple of episodes of pain and spasm that caused him to “actually wet himself.”  However the CI reported that he had not had any other loss of bladder dysfunction.  There were no examination findings pertinent to the CI’s thoracolumbar spine.  

During the MEB examination dated 10 October 2003, 11 months prior to separation, the examiner recorded that the CI had “cramps” down his bilateral legs.  Physical examination showed decreased ROM in the low back.  However the examiner did not note specific measurements.  Examination tests for radiculopathy were positive in both legs and his motor strength was decreased to 4/5.  The CI had normal reflexes and sensation.  Physical therapy (PT) measured repetitive range of motion (ROM) for the MEB on 3 December 2003, 9 months before separation.  Pain-limited active lumbar spine ROM was flexion of 18/18/18, extension of 12/12/10, bilateral lateral flexion of 14/14/14, and bilateral rotation of 20/20/20 degrees.  The examiner reported the CI “put out good effort.”  On 25 March 2004, PT measured repetitive ROM, 5 months before separation.  Thoracic ROM was measured with 2 universal inclinometers and lumbar ROM was measured with 2 universal inclinometers, except for rotation which was measured with a goniometer.  Pain-limited active lumbar spine ROM was flexion of 10 degrees (90 normal), extension of 12 degrees (30 normal), bilateral lateral flexion of 16 degrees (30 normal), right rotation of 32 degrees (30 normal), and left rotation of 35 degrees (30 normal).  

At the 6 October 2004 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI complained of chronic, daily, 5/10 back pain that radiated into his right lower extremity when he drove.  He endorsed that his back pain was aggravated by sitting or standing more than an hour or “walking more than a half block.”  The CI couldn’t lift more than 15 pounds, run, or bend.  He also reported that he had “severe incapacitating flare-ups of his back pain about eight times a year during which time he [lost] about five to six days of work because of being in bed.”  The physical examination documented a normal gait.  The thoracolumbar spine examination revealed guarding of the lumbar spine with no muscle spasm or tenderness.  Pain-limited active thoracolumbar spine ROM was flexion of 25 degrees (90 normal), extension of 15 degrees (30 normal), bilateral lateral flexion of 20 degrees (30 normal), and right rotation of 15 degrees (30 normal), left rotation of 25 degrees (30 normal), and combined of 120 degrees (240 normal).  The straight leg raise (SLR) test (assesses for herniated disc causing sciatic nerve root [L5-S1] radiculopathy) was positive on the right.  Lower back ROM was limited by pain, but there was no fatigue, weakness, lack of endurance, or incoordination.  Lower extremity motor strength and sensation were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing pain-limited ROM, 5/5 motor function, and reported spasms.  The VA rated the back condition 40% coded 5243, based on the VA C&P examination 1 month after separation, citing limitation of forward flexion of 25 degrees due to pain.  
The Board agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the PT MEB ROM studies and the VA C&P exam.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  The evidence showed the CI had IVDS (disk disease causing back and radiating pain) and experienced incapacitating episodes due to acute signs and symptoms that required treatment and bed rest prescribed by a physician.  According to a review of the STR, 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, however this did not result in a higher rating based on limitation of motion.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disk with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records.  However, the preponderance of examinations proximate to separation indicated normal strength, reflexes, sensation, and gait.  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 that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  The Board assigned more probative value to the C&P examination because it measured thoracolumbar ROM versus the thoracic and lumbar ROM documented in the PT ROM exams.  The Board assigned less probative value to the PT ROM exams because of their remote temporal relationships (9 and 5 months before separation) to the time of separation.  The Board assigned more probative value to the C&P examination, 1 month after separation, as accurately reflecting the CI’s condition at the time of separation.  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 back condition, coded 4253.  

C6/C7 Herniated Disk.  According to STRs and the MEB NARSUM, the CI underwent cervical spine surgery with diskectomy in April 2003 for herniated disk.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  MRI dated 10 May 2005 indicated that he had mild stenosis (narrowing) of the right C6-C7 neural foramen (nerve root opening) and disk bulges at C4-C5 and C5-C6 without stenosis.  The MEB forwarded “herniated disk C6-C7” and “continued post-operative pain” for PEB adjudication.  The NARSUM noted complaints of neck pain that felt “like somebody [was] driving a nail through the back of his neck, which [went] down to his hand.”  On physical examination his motor strength was normal in his upper extremities.  There were no other pertinent examination findings for his neck condition.  During the MEB examination the CI reported pain radiating from neck to shoulders since 2003 and numbness and loss of feeling in right hand since after neck surgery.  Physical examination showed decreased sensation to right 1st through 4th fingers, but his motor strength and reflexes were normal.  On 3 December 2003, PT measured repetitive ROM for the MEB, 9 months before separation.  Pain-limited active cervical ROM was flexion of 14/16/16 (45 normal), extension of 36/38/38 (45 normal), right lateral flexion of 30/32/30 (45 normal), left lateral flexion of 38/38/40 (45 normal), right rotation of 42/44/44 (80 normal), and left rotation of 44/46/44 (80 normal), and combined of 215 (340 normal) degrees.  The examiner reported the CI “put out good effort.”  On 25 March 2004, PT measured repetitive ROM, 5 months before separation.  Cervical ROM was measured with a CROM inclinometer.  Pain-limited active cervical spine ROM was flexion of 15/16/16 (45 normal), extension of 32/34/32 (45 normal), right lateral flexion of 30/32/32 (45 normal), left lateral flexion of 30/30/30 (45 normal), right rotation of 45/46/48 (80 normal), and left rotation of 40/40/42 (80 normal), and combined of 195 (340 normal) degrees.  At the VA C&P examination the CI reported that his neck was sometimes painful, but it was not a daily problem.  

He reported that if he looked down for more than 1/2 hour, he had radicular pain that went down his right arm to his first four digits.  He occasionally had difficulty telling if things were hot or cold with his right hand.  The examiner recorded that the CI’s neck condition was “not incapacitating to him” and that the CI had “not lost any time from work as pertaining to this condition.”  The physical examination documented a normal gait.  The cervical spine examination revealed mild lower paraspinal tenderness with no muscle spasm, ankylosis (joint stiffening or immobility), or radiation of pain on movement.  Active cervical spine ROM was flexion of 45 (45 normal), extension of 30 (45 normal), right lateral flexion of 25 (45 normal), left lateral flexion of 30 (45 normal), bilateral rotation of 70 (80 normal), and combined of 270 (340 normal) degrees.  Cervical ROM was not limited by pain, fatigue, weakness, lack of endurance, or incoordination.  Upper extremity motor strength and sensation were normal except for decreased sensation on the right lateral forearm, thumb, and index finger.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10% under the 5243 code, citing pain, 5/5 muscle strength, and normal neurological exam.  The VA also assigned a 10% rating using the 5243 code citing limitation of motion.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  The evidence showed the CI had IVDS and experienced incapacitating episodes due to acute signs and symptoms that required treatment and bed rest prescribed by a physician.  According to review of the STR, the total duration of incapacitation for cervical pain over the 12 months prior to separation was less than 1 week which would not support the minimum rating under this rating formula.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disk with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes, and the sensory changes did not affect his job.  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 neurologic impairment which would impact military occupation-specific activities.  There was no evidence in this case that a neurologic abnormality 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.  The Board noted the limitation of cervical spine motion recorded in the two pre-separation PT ROM examinations met the threshold for a 30% rating, while the ratable evidence in the VA C&P examination only supported a 10% rating.  The Board assigned less probative value to the PT ROM exams because of their remote temporal relationships (9 and 5 months before separation) to the time of separation.  The Board assigned more probative value to the C&P examination, 1 month after separation, as accurately reflecting the CI’s condition at the time of separation.  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 neck condition.  

BOARD FINDINGS.  In the matter of the back condition, the Board unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 Low Back Pain	5243	40%	
C6/C7 Herniated Disk	5243	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150127, with attachments
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, AR20160018484 (PD201500135)

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