RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00484
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060328

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Unit Supply Specialist, medically separated for “chronic low back pain (LBP) secondary to degenerative disc disease (DDD)” and “chronic left leg radicular pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI received a higher rating from the VA.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20051216	VARD - 20071022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	DDD Lumbar Spine	5237	10%	20070529	
Chronic Left Leg Radicular Pain	8720	10%	Lumbar Radiculopathy	8521	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic LBP with Chronic Left Leg Radicular Pain.   According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a chronic history of back pain that was exacerbated by doing sit-ups in July 2004 and accompanied by an abrupt onset of left lower extremity (LLE) radicular symptoms.  Magnetic resonance imaging (MRI) demonstrated single-level DDD with “small-to-moderate” herniation L5/S1 with left S1 nerve root impingement.  Despite left L5/S1 microdiskectomy surgical intervention in February 2005, the CI continued to suffer intractable back pain with LLE radicular symptoms.  
There were significant range of motion (ROM) limitations noted in the first 2 months following surgery, but subsequent entries documented grossly normal or non-specifically limited ROM.  Other than the ROM evidence after the NARSUM as elaborated below, there were no STR entries that indicated more severe ROM limitation.  There was STR documentation of a normal gait and normal spinal contour, with no contrary entries and, there was no documentation of incapacitating episodes. 

The response to conservative measures was insufficient to allow unrestricted duty, and the CI was referred for an MEB which in turn forwarded “lumbar DDD with radiculopathy status-post left L5/S1 microdiskectomy” to the PEB.  The MEB additionally forwarded “lumbar facet arthropathy,” “sacroiliac joint syndrome,” and “left-sided piriformis muscle syndrome” which were appropriately subsumed in the PEB’s spine and radiculopathy ratings.  

The 22 August 2005 NARSUM examination, 7 months before separation, documented nonspecific back pain with LLE radiation “without weakness or paresthesias,” and referenced only profile restrictions as functional limitations.  The physical examination recorded a normal gait, tenderness with no note of spasm, and normal neurological findings, except for a mild sensory deficit in a “left L5 and S1 distribution.”  The examiner stated that the ROM was “limited with flexion” without further elaboration.  

A 15 May 2007 VA general Compensation and Pension (C&P) examination, 14 months after separation, was supplemented by an orthopedic C&P examination on 29 May.  These provided similar probative evidence, and documented persistent back pain with LLE radiation rated 7/10 with subjective weakness and sensory complaints per the orthopedic examiner.  Neither examiner documented a history of incapacitating episodes.  The physical examinations recorded a normal gait, tenderness, the absence of spasm, and equivalent neurological findings to those in the NARSUM.  Both examiners provided ROM measurements, and both recorded flexion to 65 degrees, but the combined ROM was 155 degrees by the general examiner and 180 degrees by the orthopedic examiner.

The panel directed attention to its rating recommendations based on the above evidence.  The PEB’s 10% spine rating under code 5243 (intervertebral disc syndrome) cited ROM limited by pain, suggesting application of Army Regulation 635-40 (B-29, e).  The VA‘s 10% rating under code 5237 (lumbar strain) referenced the C&P ROM evidence and cited the VASRD §4.71a 10% criterion of “flexion greater than 60 degrees but not greater than 85 degrees.” 

Members agreed that the ROM measurements by the two post-separation VA examiners, albeit more remote from separation, were best aligned with the preponderance of pre-separation ROM evidence and should be assigned greater probative value for the panel’s recommendation. 

There was no other ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or spinal contour to support a 20% rating, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.

The panel then considered the PEB’s 10% rating for the LLE radiculopathy under code 8720 (sciatic nerve).  The VA conferred the same rating under code 8521 (common peroneal nerve).  The PEB’s coding choice was more anatomically consistent with spinal nerve root impingement although, both codes provide a 10% rating for “mild” and 20% rating for “moderate” impairment.  Although the VA rating was premised on the C&P evidence, the latter was equivalent to the neurological findings before the PEB; e.g., sensory impairment only, without significant functional implications.  The pain component of a radiculopathy is subsumed by the spine rating as specified in the §4.71a rating formula.  Members agreed that the evidence at separation of a fairly inconsequential sensory deficit without objective motor weakness, did not justify a nerve rating higher than 10% under the above criteria.  

After due deliberation, considering all the evidence and with deference to reasonable doubt, the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar radiculopathy.

BOARD FINDINGS:  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic left leg radicular pain and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005973, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,