RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00831
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20021002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Network Switching Systems Operator - Maintainer, medically separated for “status post L5/S1 interbody fusion…” with a disability rating of 10%.

CI CONTENTION:  The CI requested a review of 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 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 - 20020821	VARD - 20021010	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post L5/S1 Interbody Fusion…	5299-5295	10%	Discogenic Disease, Status Post Surgery with Interbody Fusion with Continued Radiculopathy to Left Lower Extremity	5293-5292	40%	20020910	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Status Post L5/S1 (Lumbosacral) Interbody Fusion.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent low back surgery with fusion in February 2002 for degenerative disc disease (DDD) causing back and left leg pain/numbness.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “DDD L5-S1 status post transforaminal lumbar interbody fusion” for PEB adjudication.

At an orthopedic follow-up evaluation dated 15 March 2002, 6 weeks after surgery and 7 months prior to separation, the CI denied leg pain and the examiner stated, “…bends over and gets up with mild discomfort”.  During the MEB examination (recorded on DD Forms 2807 and 2808) dated 21 May 2002, 4 months prior to separation, the CI reported daily back pain with numbness and tingling in his left leg.  The physical examination (PE) documented “left lower extremity with weakness and decreased sensation.”  The examiner did not record any spinal range of motion (ROM) measurements.  At the MEB NARSUM examination on 23 July 2002, 2 months prior to separation, the CI endorsed continued low back pain with extension into his buttocks.  He also endorsed “minimal leg pain”.  His PE revealed that he walked “with a very stiff back and slightly antalgic gait.”  Clinical testing for radicular signs were negative and his motor strength, reflexes and sensation were all normal.  The examiner did not include spinal ROM measurements.  At the 10 September 2002 VA Compensation and Pension (C&P) evaluation, performed 3 weeks prior to separation, the CI reported severe low back pain on a daily basis aggravated by “bending, sleeping and stairs.”  He also complained of “radicular pain to the left leg.”  His PE revealed a left-sided antalgic gait.  Spinal ROM was significantly limited.  Thoracolumbar flexion was measured at 10 degrees (normal 90), extension at 10 degrees (normal 30), and bilateral lateral flexion of 15 degrees (normal 30 degrees each side).  Spinal tenderness was present as well as spasms of the muscles adjacent to the lower spine.  Motor strength was minimally decreased in the left lower extremity and there was “decreased sensation over the left lateral leg and top of the left foot.”   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded as 5299-5295 (lumbosacral strain), citing characteristic pain on motion.  The VA rated the back condition at 40%, dual coded 5293-5292 (intervertebral disc syndrome with limitation of motion of the lumbar spine), based on the VA C&P examination 3 weeks before separation, citing severe limitation of motion of the lumbar spine.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board noted that the 2002 VA Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The Board must correlate the above clinical data with the 2002 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome); and 5295 (lumbosacral strain)

In assigning probative value to these somewhat incomplete examinations, the Board agreed that the VA examination proximate to separation was more detailed, clinically relevant, and included a majority of thoracolumbar ROMs and therefore, it was apportioned the greatest value in determining an impairment rating.  Board members then acknowledged the severity of the measured ROMs at the VA examination and agreed that the vacillating symptoms and clinical findings presented in this entire case could easily be related to (or a result of) a build-up of surrounding scar tissue about the surgical site with intermittent bouts of local inflammatory flare-ups.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% (severe) for the back condition, coded 5292.  Although there was evidence of intervertebral disc syndrome (IVDS), there was no evidence of incapacitating episodes requiring bedrest prescribed by a physician so a higher rating under code 5293 (IVDS) was not justified.
 
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.  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.  The probative examination in this case did reveal a decrease motor weakness, but this was found to be ‘minimal’ and not adversely affecting his duties.  

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW 2002 VASRD guidelines, the Board unanimously recommends a disability rating of 40%, coded 5292.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends 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	
Status Post Lumbosacral Spinal Fusion	5292	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150606, 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 
XXXXXXXXXXXXXXXXXX, AR20170000260 (PD201500831)

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