RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01943
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Human Resources Specialist, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  The CI contends that her back condition continues to worsen and that it should be rated higher.  The CI’s 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 - 20051129	VARD - 20060207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Herniated Disc, L4-5, with Lumbar Neuritis	5243	20%	20051024	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to the service treatment record (STR), the CI’s back condition began in April 2004 after jumping on a trampoline.  Radiographic studies in June 2005 showed herniation of the L4-5 disc with impingement on the right L-5 spinal nerve root.  Although surgery was an option, it was not highly recommended.

At the time of an orthopedic evaluation on 23 June 2005, 7 months prior to separation, the CI reported right leg numbness and shooting pains into her foot.  Physical examination showed a normal gait and no muscle spasm, but lumbar spinal tenderness was present.  One test for nerve root irritation was negative, but another was positive on the right side.  Lower extremity motor strength, sensation and reflexes were all normal.  A physical examination on 7 July 2005 reported thoracolumbar flexion of 35 degrees (normal 90) and combined range of motion (ROM) of 170 degrees (normal 240).

During the 3 October 2005 MEB examination (recorded on DD Form 2807-1), 4 months prior to separation, the CI reported “numbness in foot and leg” but denied impaired use of her legs.  At the time of the neurosurgery clinic appointment on 11 October 2005 the CI reported back pain that radiated to the right posterior leg and the sole of her foot.  Physical examination showed an antalgic gait, but there was no mention of guarding or muscle spasm.  Examination testing for nerve root irritation was negative, and lower extremity neurologic testing was entirely normal bilaterally.  The MEB narrative summary (NARSUM) examination on 13 October 2005 recorded complaints of shooting pains into the right lower extremity and right foot associated with numbness.  Weakness was denied.  Physical examination showed a normal gait and normal lumbosacral spine appearance, but spine tenderness was present.  A test for nerve root irritation was positive on the right.  Motor strength, sensation and reflexes were all normal.  Thoracolumbar spine flexion was 45 degrees and combined ROM was 175 degrees.  The examiner rendered a diagnosis of herniated nucleus pulposus and sensory radiculopathy.

At the 24 October 2004 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported constant low back pain that radiated to the right hip, leg and foot.  Incapacitation from back pain was denied.  Physical examination showed a normal gait, and spinal tenderness but no spasm.  A test for nerve root irritation was negative.  Lower extremity motor strength, sensation and reflexes were normal.  The examiner noted the absence of chronic or permanent nerve root involvement from intervertebral disc syndrome.  Thoracolumbar flexion was 45 degrees and combined ROM was 185 degrees.  On 21 November 2005, 2 months prior to separation, a physical therapist measured thoracolumbar flexion of 35 degrees and combined ROM of 145 degrees.  Measurements were taken after three repetitions.  Painful motion was present.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing “ROM limited by pain with positive tenderness.”  The VA rated the back condition 20% coded 5243, based on the C&P examination 3 months before separation, citing forward flexion limited to 45 degrees as the rationale.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees consistently reported on multiple examinations.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  The panel noted that the PEB considered radiculopathy in its adjudication (“without motor radiculopathy”) and the CI contended this condition.  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  The CI had a herniated disc, there were symptoms of radiating pain and numbness documented in the treatment records, and the NARSUM examiner rendered a diagnosis of sensory radiculopathy.  Although “neuritis” was listed on the permanent profile, examinations indicated normal strength, reflexes, sensation and gait.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’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).”  Although there was a complaint of right lower extremity numbness, there was no objective loss of sensation that could correlate with functional limitations.  Likewise, there was no evidence of motor weakness which would impact military occupation-specific activities.  There was thus no evidence in this case that radiculopathy was functionally impairing.  The panel 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 panel recommends a disability rating of 20% for the back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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	
Chronic Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150629, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010256, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure