RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00240
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, (Special Forces Medical Sergeant), medically separated for “low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI contends that his condition was initially award 20% disability then lowered to 10% and believes that this was done incorrectly.  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 - 20031208	VARD - 20040825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual Mechanical Low Back Pain	5243	10%	Postoperative Herniated Nucleus Pulposus, Lumbar Spine	5243	40%	20040708	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Residual Mechanical Low Back Pain.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain condition began in January 2003 after falling with a full load of gear during urban combat course training.  Despite Toradol (ketorolac, a nonsteroidal anti-inflammatory drug (NSAID), Valium (diazepam, a muscle relaxer) and bed rest, his back pain continued unabated.  A lumbar spine X-ray series was normal on 7 February 2003.  Magnetic resonance imaging (MRI) on 25 February 2003 demonstrated an L5-S1 left paracentral disc protrusion (herniation) with secondary left S1 nerve root/foraminal impingement.  Physical therapy to increase lower extremity flexibility, traction, use of a TENS unit, and chiropractic treatment provided no relief.  In March 2003 a surgeon noted that the CI had some radicular symptoms; however, he opined that the chance of surgery helping him was only in the 50% range and would only help the leg pain and not the back pain.  A myelogram was essentially negative, although there was a tiny defect at L5-S1 on the left side, while computerized tomography (CT) showed a bulge at L5-S1, which was thought it could compromise the S1 root on the left.  On 25 April 2003 the CI underwent a partial L5-S1 hemilaminectomy and discectomy.  His postoperative course was marked by resolution of leg pain, but the back pain was worse at night.  Elavil (amitriptyline for nerve pain) was prescribed along with some physical therapy.  X-rays of the lumbar spine on 1 July 2003 revealed a normal curvature without any appreciable spondylosis (degenerative changes), disc space narrowing or abnormality in the posterior elements.  

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 MEB.  The MEB forwarded “chronic low back pain, s/p laminectomy and diskectomy L5-S1” for PEB adjudication.

An MRI of the lumbar spine dated 11 July 2003 demonstrated a small amount of enhancing scar tissue from the subcutaneous fat through the paraspinal muscles to the epidural space [L5-S1], but the amount of scar tissue was not be considered abnormal and was not causing a significant mass effect on the thecal sac.  There was a left lateral disc protrusion at L5-S1 of the mildly degenerative disc, which appeared similar to the prior MRI examination; however it continued to have very slight mass effect on the left, anterior aspect of the thecal sac and there remained some narrowing of the inferior aspect of the left L5 neural foramina in comparison to the right side.  There was very mild disc desiccation at L4-5, but no evidence of a significant posterior disc protrusion or extrusion.  The CI still had residual mechanical low back pain on 17 July 2003, but no bowel or bladder disturbance and no further surgical intervention was indicated, but the CI was scheduled for pain management and Neurontin (gabapentin for nerve pain) was to be tried.  The NARSUM noted an examination on 18 July 2003 was normal except for tenderness and rigidity in the lumbosacral area and a recent scar in the lumbar area, while at an examination on 6 August 2003 the CI was tender to palpation on the left lumbosacral area with a positive straight leg raise (to determine nerve root irritation) on the left and mild sciatic notch tenderness on the left.  Neurologic evaluation was normal, but the CI was unable to duck walk secondary to low back pain.  The CI stated that if he “does nothing” and [or did] low-impact aerobics he had no back pain; however, he did have pain in the left buttock, posterior thigh, calf, and foot after prolonged sitting and standing.  At the MEB examination dated August 2003, 5 months prior to separation, the CI reported he was unable to sit or stand for extended periods of time without pain or tingling in the left leg and lumbar spine and had trouble sleeping due to back pain.  Physical examination revealed tenderness to palpation of the left lumbosacral area, a positive straight leg raise on the left and positive mild sciatic notch tenderness.  Neurologic evaluation was normal.

At the VA Compensation and Pension (C&P) examination on 8 July 2004, performed 5 months after separation, the CI reported he still was continuing to have pain in his back post-surgery and took Ultram (tramadol, an opioid-like medication), Vioxx (rofecoxib, an NSAID), Vicodin (hydrocodone, a narcotic and APAP (acetaminophen, a pain reliever), and Tylenol #3 (codeine, a narcotic and acetaminophen, a pain reliever) and used a TENS (transcutaneous electric nerve stimulation) unit, ice and heating pads.  He noted radiating pain, tingling and numbness from his lower back to the left calf.  Range of motion (ROM) measurements are in the chart below.  He had a well-healed scar over the lower lumbar region and had no muscle spasm.  Neurologic evaluation was unremarkable.  CT of the lumbar spine dated 13 April 2004 demonstrated degenerative disease of the lumbosacral spine worse at L5-S1 level where a broad based disc asymmetry to the left was seen severely narrowing the left side neural foramen with possible involvement of the left L5 exiting nerve roots.  No incapacitating episodes were reported.

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)	VA C&P                            ~7 Mos. Pre-Sep
	PT/MEB                           ~6 Mos. Pre-Sep	VA C&P                                    ~5 Mos. Post-Sep	
Flexion (90 Normal)	30 (95)	50	90/95	
Extension (30)	0 (35)	10	10/35	
R Lat Flexion (30)	20 (40)	(30)40	20/40	
L Lat Flexion (30)	20 (40)	(30)40	20/40	
R Rotation (30)	35 (35)	(30)41	(30)35/35	
L Rotation (30)	35 (35)	(30)45	(30)35/35	
Combined (240)	140	180	200	
Comment	1 month post-surgery; loss of lordosis and muscle spasm; pain, weakness, lack of endurance, fatigue and incoordination impact the ROM-temporary and unstable		Well –healed scar over the lower lumbar region; no muscle spasm	
§4.71a Rating	40%	20%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating on reconsideration under the 5243 code (intervertebral disc syndrome), citing residual mechanical low back pain post left L5 laminotomy with imaging showing partial discectomy, epidural scarring and no neurological compromise.  However, the PEB initially assigned a 20% rating under an analogous code 5237-5009-5003 (degenerative arthritis), citing “residual mechanical low back pain post left L5 laminotomy with imaging study showing partial discectomy at L5/S1.  The amount of epidural scarring appears to be within normal limits and is not causing any neural compromise.  Rated for pain as marked and frequent.”  The VA assigned a 40% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 5 months after separation (although the rating coincides with the VA examination 7 months prior to separation), citing postoperative herniated nucleus pulposus.
 
Board members initially considered the PEB’s 10% rating, which did not account for the ROM measurements 6 months (187 days) prior to separation.  Therefore, the Board majority 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 physical therapy examination for the MEB.  The Board members then weighed the probative value of the VA examination 5 months after separation, which although was more proximate to separation by 17 days was 11 months after the PT examination thereby affording a greater opportunity for healing postoperatively as well as the CI’s having ended many service requirements and burdens not normally found in civilian life.  Furthermore, the CI reported taking Ultram, Vioxx, Vicodin or Tylenol #3 at the VA examination, which suggests that pain and inflammation may have been diminished with the medication, thereby raising the validity of the measurements.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc 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 gait, and the sensory changes did not affect his job.  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 therefore concluded 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 majority recommends a disability rating of 20% for the residual mechanical low back pain condition, coded 5243.    

BOARD FINDINGS:  In the matter of the residual mechanical low back pain condition, the Board majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommended no re-characterization and did not elect to submit a 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	
Residual Mechanical Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150328, 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

09 JAN 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160018546 (PD201500240)

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