RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2015-00153
BRANCH OF SERVICE:  Army                                                                  SEPARATION DATE:  20071130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Radio Operator/Maintainer, medically separated for “chronic low back pain” with a disability rating of 20%.

CI CONTENTION:  The CI contends he should have been medically retired with 100% disability because the VA rated him at 100% for 10 service-connected 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 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 - 20070810	VARD – 20080125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5241	20%	Post-Operative Degenerative Disc Disease, Lumbar Spine	5243	20%	20070403	
			Radiculopathy, Left Lower Extremity	8520	20%	20070403	
Diabetes	Not Unfitting	Diabetes Mellitus Type II	7913	20%	20070403	
		Sensorimotor Neuropathy, Right Lower Extremity	8520	20%	20070403	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea with Asthma	6847	50%	20070403	
Asthma	Not Unfitting					
Esophageal Reflux Disorder	Not Unfitting	Gastroesophageal Reflux Disease	7203-7346	10%	20070403	
Hypertension	Not Unfitting	Hypertension	7101	0%	20070403	
Abnormal Rheumatoid Factor	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back condition began in June 2005 as a result of a fall while he stepped down from stringing computer cable and hit his back.  He was initially treated in theater, but due to lack of improvement, he was medically evacuated. Prior to activation the CI had a history of a discectomy at L5-S1 in 1998, a fusion of L5-S1 in 2000, and two weeks later an irrigation and debridement of the prior lumbar spinal fusion wound with no evidence of a cerebrospinal fluid leak.  Neurosurgical evaluation in November 2005 indicated films of the CI’s lumbar spine showed no obvious destruction of the prior fusion, although he had some loss of disc height at L4-5 above the fusion, while computerized tomography (CT) demonstrated status post-placement bilateral pedicle screws and anterior interbody fusion at L5-S1, which the neurosurgeon interpreted as no obvious neural compressive lesion at L5-S1, but with foraminal narrowing at L4-5 and some degenerative changes in the SI joints bilaterally, left worse than right.  Treatment consisted of bilateral L4-L5 transforaminal epidural steroid injections (ESIs), which provided no relief.  Sacroiliac joint steroid/anesthetic injections were given in January 2006 also provided no significant relief.  Because of increased back pain the CI underwent surgery to extend his previous fusion to include L4-5 on 6 March 2006.      Postoperatively, he continued to have pain in the right leg with numbness of the right foot.  A CT scan in June 2006 demonstrated status post fusion L4-5 and L5-S1 with instrumentation in place, circumferential perithecal (surrounding the lining of the spinal cord) granulation tissue/fibrosis noted at L4-5 level, which might have mildly abutted the traversing L4-5  nerve roots, but with no central canal stenosis.  The neurosurgeon noted the right hamstring/inner thigh pain may have been as a result of possible nerve root compression from the disc bulge and ligamentous hypertrophy at L3-4 above the fusion.  Additional epidural steroid injections were given for the persistent back and leg pain without relief.  Thoracic spine abnormalities were noted on magnetic resonance imaging (MRI) at the posterior spinous process of T1, which was a probable benign osteoma and a presumably benign dural membrane surrounding the spinal cord and calcification at T3-T4, neither compressing the spinal cord or nerve root.  Electrodiagnostic studies in September 2006, performed for chronic bilateral foot numbness, revealed chronic left L5 radiculopathy and probable generalized sensorimotor peripheral neuropathy, evidenced by absent sural and peroneal sensory responses bilaterally and slowing of proximal motor conduction velocities.  Lyrica (pregabalin for nerve pain) along with a Lidoderm (lidocaine, an anesthetic) patch daily, baclofen ((β-(4-chlorophenyl)-γ-aminobutyric acid, a muscle relaxer to treat muscle spasms), and OxyContin (oxycodone, a narcotic) were prescribed for the L5 radiculopathy and back pain.  With the use of a bone stimulator the CI’s back felt better and cervical traction helped his neck enough such that he declined any injections.  The CI was evaluated for foot numbness in October 2006 at which time he had an antalgic gait and hypoesthesia (decreased sensation) in the distal lower extremities associated with areflexia (absent reflexes) at the ankle suggestive of a sensory peripheral neuropathy.  Bilateral transforaminal L5-S1 ESIs were given in October 2006.  Topamax (topiramate, a medication for seizures and migraine headaches) replaced the Lyrica, which was not tolerated.    

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 “lumbar back pain, s/p two fusion, bilateral lower extremity (LE) pain/numbness, upper back pain, lumbar stenosis, facet disease” and herniated nucleus pulposus (HNP) degenerative joint disorder (DJD) degenerative disc disease (DDD), EPTS), service aggravated” for PEB adjudication.

At the MEB examination on 16 November 2006, 12 months prior to separation, the CI reported back surgeries and his fall from a ladder.  Physical examination revealed decreased range of motion (ROM) from the low back pain and the CI walked with a cane.  Due to an elevated fasting blood sugar, treatment for diabetes was started (see below) based on the finding of generalized peripheral neuropathy and a neurologist indicated the CI required a leg pedal and gas pedal on his steering column in order to safely operate a motor vehicle.  

At the VA Compensation and Pension (C&P) examination on 3 April 2007, performed 8 months before separation, the CI reported five to six incapacitating episodes in the prior 12 months.  The CI had radiation of pain to the left leg with spasms, but no numbness or tingling, weakness, bowel or bladder incontinence.  He had an antalgic gait and rested his weight on a cane.  Posture was normal.  There was muscle spasm, tenderness, guarding in the lumbar region.  Straight leg raising was negative.  Lower extremity strength was 5/5 and sensation was normal.  Knee reflexes were 1+.  ROM measurements are in the chart below.  According to the VA Rating Decision (VARD) treatment report on 23 June 2007 noted the CI had a deficit in motor strength in the lower extremities with normal coordination and balance.  A note in July 2007 indicated the CI had 11 steroid injections in a 10-month period and one of them resulted in complete numbness and weakness of the right leg.  The CI reported chronic neck pain (see below) and low back pain in September 2007.  In July 2007 and August 2007 the CI had severely impaired sensation with his ability to feel only in the arches and great toe.  In October 2007 the CI felt a pop in his back and had lower back pain and swelling of the in the right leg that was diagnosed and treated in the hospital as a deep venous thrombosis, which is not in the scope of review.  

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)	PT ~14 Mos. Pre-Sep 	PT/MEB NARSUM ~13 Mos. Pre-Sep
	VA C&P ~8 Mos. Pre-Sep
	
Flexion (90 Normal)	53%	(55)50, 52, 54	45	
Extension (30)	75%	(10)10, 11, 8	15	
R Lat Flexion (30)	90%	(10)12, 14, 10	30	
L Lat Flexion (30)	90%	(10)12, 11, 10	25	
R Rotation (30)	90%	(20)18, 17, 22	(30)40	
L Rotation (30)	90%	(25)20, 24, 24	(30)40	
Combined (240)	-	130	175	
Comment	Minimal to moderate pain	Limitation due to pain and mechanical limitation due to spin fusion L4-S1	Pain at the end of motions; no loss of motion with repetition	
§4.71a Rating	-	PEB 20%	VA 20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5241 code (spinal fusion), citing (tenderness on palpation with muscle spasms and abnormal gait).  The VA also assigned a 20% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 7 months before separation, citing (degenerative disease, lumbar spine with limitation of forward flexion).  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 the NARSUM and VA examinations.  While the CI reported five to six incapacitating episodes in the year prior to separation, there was no physician-prescribed bed rest to warrant consideration under the alternate VASRD formula for the intervertebral disc syndrome.  Even in the absence of the physician prescribed bed rest, the record did not provide information to support a total duration of at least 4 weeks but less than 6 weeks during the prior 12 months to support a 40% rating.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  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.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but the Board majority noted physical examinations proximate to separation revealed no objective findings of a significant motor radiculopathy that would impact duty performance; however, there was a L5 radiculopathy confirmed by an electrodiagnostic study, which along with the polyneuropathy secondary to diabetes (see below) that involved additional sensory deficits originating from the sural and peroneal peripheral nerves, generated  a request for accessory equipment so the CI could safely drive his vehicle.  Nevertheless, the Board majority concluded that an additional disability rating was not justified for the L5 radiculopathy.  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 chronic low back pain condition. 

Contended PEB Conditions: Diabetes, Obstructive Sleep Apnea, Asthma, Esophageal Reflux Disorder, Hypertension, and Abnormal Rheumatoid Factor.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or judged to fail retention standards.  The diabetes, obstructive sleep apnea, asthma, esophageal reflux disorder, hypertension, and abnormal rheumatoid factor were not implicated in the commander’s statement.  The obstructive sleep apnea was profiled, noting the CI “must have access to electricity for CPAP.”  The CI underwent a sleep study (polysomnogram) on 5 October 2006, which revealed mild REM (rapid eye movements) related OSA.  A follow-up sleep study on 31 October 2006 indicated the OSA was well controlled with continuous positive airway pressure therapy (CPAP).  Eleven cm of H2O (water) attenuated all apneas (temporary cessation of breathing), hypopneas (abnormally slow or shallow breathing), and desaturations (decreased oxygen levels).   A pulmonary examination on 19 December 2006 revealed resting oximetry (measurement of oxygen in the blood) of 97% on room air with clear breath sounds on chest auscultation.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

Contended PEB Condition: Cervical Spine Pain.  The cervical spine pain was not profiled, but was implicated in the commander’s statement as upper back pain and was referred to the PEB as upper back pain as not medically retainable, but was not addressed by the Formal PEB, but was mentioned in a letter relating to an appeal of the Formal PEB Proceeding that it was not judged to fail retention standards.  A note dated 31 August 2006 indicated the CI had occasional numbness in the left upper extremity associated neck pain.  An MRI of the cervical spine, performed on 15 September 2006 for neck and left arm pain, demonstrated a posterior annular tear without disc herniation at C5-C6 and mild neural foramen (where nerves pass through the vertebral column) narrowing and at C6-C7 an uncovertebral spur caused a moderate left C6-C7 neural foramen stenosis affecting the left C7 nerve root.  A neurosurgeon interpreted the MRI as cervical spondylosis at C5-6 with a disc bulge and foraminal compromise at that level with mild right sided neural foraminal compromise at C4-5.  Electrodiagnostic studies in October 2006 revealed left ulnar neuropathy at the elbow and no definite evidence of left cervical radiculopathy.  Surgery was not indicated.  ROM measurements in November 2006 were forward flexion 40/35/36 degrees (normal 45) and a combined ROM of 225 degrees with limitation of motion due to pain and some muscle tightness.  In July 2007 the CI complained primarily of neck pain, which radiated into his head.  On examination he had decreased ROM.  A repeat MRI of the cervical spine demonstrated no significant change from the prior examination, while the neurosurgeon interpreted it as cervical spondylosis with disc bulges at C5-6 with a small annular tear and a disc bulge at C4-5 and osteophytes at C6-7, which caused foraminal compromise, worse on the left.  A CT scan in August 2007 demonstrated some essentially mild central canal stenosis at C5-6 related to a broad disc bulge and accompanying spurring where borderline cord abutment could result.  At the VA C&P examination, 8 months prior to separation, the CI reported incapacitation for 14 days in the prior year and tingling in the left arm.  Forward flexion was 25 degrees and a combined ROM was 195 degrees with painful motion, but no increase of symptoms with repetition.  There was no muscle spasm or tenderness to palpation.  

After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of neck pain condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5243 (intervertebral disc syndrome) and meets the VASRD §4.71a criteria for a 20% rating.  There was no evidence of an intervertebral disc syndrome (IVDS), which resulted in incapacitating episodes requiring physician-prescribed bed rest, despite the CI’s report of incapacitating episodes, to warrant consideration of rating under the alternate VASRD formula (for IVDS).  Furthermore, there was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended diabetes, asthma, esophageal reflux disorder, hypertension, and abnormal rheumatoid factor conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended neck pain condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	20%	
Neck Pain	5243	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150206, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.  The minority voter recommends that the CI be found additionally unfit for the documented, symptomatic L5 radiculopathy, which although it presented with diminished sensation and pain, which is routinely is subsumed with the lower back condition according to the General Rating Formula of Diseases and Injuries of the Spine; nevertheless the CI had electrodiagnostic findings of absent sural and peroneal sensory responses bilaterally as well as slowing of proximal motor conduction velocities.  Of note is that the CI had an antalgic gait, distal hypoesthesia, and areflexia at the ankles prior to separation and had still had an antalgic gait at the VA examination.  It is that gait, which is the derived from the integral of both motor and sensory contributions that makes the CI unfit, since with sensory deficit from the electrodiagnostic positive L5 neuropathy associated with numbness and derived from the pre- and postoperative changes confirmed by CT scan findings of circumferential perithecal granulation tissue/fibrosis noted at L4-5 level, which might have mildly abutted the traversing L4-5 nerve roots and the diabetic induced polyneuropathy, the CI will have walking instability (Wuehr M, et al.  Sensory loss and walking speed related factors for gait alterations in patients with peripheral neuropathy.  Gait Posture.  2014 Mar, 39(3):852-858 http://www.ncbi.nlm.nih.gov/pubmed/24342450 accessed on 23 August 2016).  Furthermore, an individual with a sensory neuropathy has a reduced sense of pain; therefore, supportive shoes or boots are required otherwise the CI would be at an increased risk for pressure blisters, ulcerations and/or infections.  While the Board routinely finds favor with a radiculopathy with motor involvement, this unique left lower extremity sensory neuropathy should be favored no less because of the antalgic gait confirmed on two separate examinations and the left foot numbness, which could result in a risk of further injury or harm to the CI.  Therefore, an unfitting determination for the left L5 neuropathy is clearly warranted and a 10% rating using code 8520 (sciatic nerve-mild) should be assigned. 

The minority voter recommends the Board findings be amended to include the following:  In the matter of the left L5 radiculopathy condition, the Board recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  The minority voter is in agreement with the Board majority as follows:

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.  However, the minority voter recommends the chart for all of the unfitting conditions be modified as follows:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	20%	
Left L5 Neuropathy	8520	10%	
Neck Pain	5243	20%	
COMBINED	40%	

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, AR20160018497 (PD201500153)

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