RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02047
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20071008

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aircraft Powerplant Repair Specialist, medically separated for “chronic low back pain post L5/S1 discectomy...with persistent numbness…right lower leg” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  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 - 20070822	VARD - 20080114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Post L5/S1 Discectomy…with Persistent Numbness…Right Lower Leg	5243	10%	Lumbar Spine Facet Joint Arthropathy Post Discectomy with Intervertebral Disc Syndrome	5242	20%	20071107	
			Lumbar Spine Post-Operative Scar	7805	0%	20071107	
			Right Lower Extremity Sciatic Radiculopathy	8520	40%	20071107	
Myopia and Hypertriglyceridemia	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain…with Persistent Numbness … Right Lower Leg.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent diskectomy back surgery on 2 August 2006 (13 months prior to separation) for a herniated L5-S1 discectomy with narrowing of the right neural foramen with right L5 radiculopathy supported by abnormal electrodiagnostic testing.  
During the 14 December 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported lower back pain with loss of feeling and use of the right leg that required the use of a cane to ambulate.  Physical examination noted lower back pain with limited flexion, positive right-sided provocative testing for radicular signs, and “unable to bear full weight on right lower extremity.”  

The 21 February 2007 MEB NARSUM examination, 7 months prior to separation (7 months after surgery), noted complaints of low back pain and persistent right lower extremity numbness, despite surgery and physical therapy.  The CI was unable to stay in one position for extended periods of time and had difficulty with prolonged standing, walking, ascending and descending stairs or load bearing activities.  Physical examination showed a well healed, mildly tender surgical scar with no erythema or drainage.  Lower extremity motor examination revealed normal (5/5) motor strength in the iliopsoas, abductors, adductors, quadriceps, tibialis anterior, extensor hallucis longus and gastrocsoleus muscle complexes.  Achilles tendon and patellar reflexes were normal (2+).  The right buttock was tender to palpation and there was subjective decreased sensation to light touch in the lateral border of the right leg and foot.  The CI demonstrated an antalgic gait, but could successfully walk heel to toe.  Range of motion (ROM) testing with a goniometer after three repetitions recorded 45 degrees forward flexion (90 normal) and a combined ROM of 150 degrees (240 Normal).  ROM limitations were noted as secondary to pain with tenderness, spasm, guarding and antalgic gait all present.  Abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was negative.  STR notes in August 2007 (following the NARSUM) noted continued and increased back and leg symptoms, foot weakness, along with continued use of a cane, and forward flexion of 45 degrees.  The CI continued to complain of right leg weakness and “no driving” was added to the profile restrictions.  

At the 7 November 2007 VA Compensation and Pension (C&P) evaluation, 1 month after separation (15 months after surgery), the CI reported constant “sharp, burning, aching” 1/10 low back pain that radiated down the right leg.  Back stiffness prevented bending or lifting more than 10 pounds, but the spine condition did not cause any incapacitation.  Physical examination showed an abnormal posture with a lean to the left and an abnormal gait with a marked right sided limp.  The examiner indicated that the CI required a cane for ambulation due to right leg radiculopathy.  There was tenderness to the low back with no spasm or abnormal contour.  Straight leg raise test (for radicular symptoms) was positive on the right.  ROM testing was painful and documented forward flexion to 45 degrees (90 normal) and a combined ROM of 115 degrees (240 normal).  On repetition, ROM was limited by pain (by 0 degrees), but not additionally limited by fatigue, weakness, lack of endurance or incoordination.  There was sensory deficit of the right lateral thigh, leg and foot and motor weakness (4/5; moderate movement against resistance) of the right leg (hip adduction/abduction, knee extension/flexion, plantar flexion and great toe extension), with the nerve identified as the right sciatic.  The examiner indicated that the intervertebral disc syndrome also caused erectile dysfunction, but did not cause bowel or bladder dysfunction.  The right foot showed weakness, atrophy of the muscle and tenderness that the examiner indicated were the residuals from a right foot fracture.  The examiner indicated that the CI’s right foot anesthesia precluded him from driving.  The physician diagnosed lumbar spine bilateral facet joint arthropathy at L4-L5 and LS-S1, and intervertebral disc syndrome (sciatic nerve with L4-S1 nerve root involvement) “with marked right lower extremity radiculopathy.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% coded 5243 (intervertebral disc syndrome), citing low back pain with persistent numbness in the right lower extremity.  The VA rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 1 month after separation, citing limitation of forward flexion.  The VA also rated the right lower extremity sciatic radiculopathy at 40%, coded 8520 (sciatic nerve, incomplete, moderately severe partial paralysis), based on the same VA examination, citing limp with use of a cane, weakness and decreased sensation as a marked disability.  
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) as reported on the NARSUM and VA examinations.  There were signs of intervertebral disc syndrome (IVDS), but there was no documentation of incapacitating episodes which 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 recommends a disability rating of 20% for the low back condition, coded 5243.  

The panel noted that the PEB considered radiculopathy in its adjudication noting persistent right lower extremity numbness with normal strength and subjectively decreased sensation to light touch in the lateral border of his right leg and foot compared to the left.  The panel adjudged that this was a de facto “not unfitting” determination and the CI contended this condition.  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  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.  

The NARSUM indicated right lower extremity sensory deficit without motor loss and did not indicate that any peripheral nerve condition did not meet standards.  There was no MEB radiculopathy condition and no profile diagnosis of radiculopathy or any peripheral nerve condition; however, the profile restrictions included no driving (treatment notes indicated for foot weakness) and “may use cane/crutches to ambulate as needed.”  The commander’s statement implicated the CI’s use of a cane and restriction of no driving as interfering with duty performance.  The right lower extremity abnormal electrodiagnostic study, and examination results of sensory deficit and impaired gait and radicular symptoms documented in the NARSUM and subsequent STR entries, were consistent findings.  They aligned with the CI’s underlying pathology and indicated pre-separation worsening.  The panel unanimously agreed that the preponderance of the evidence with regard to the functional impairment of the CI’s right lower extremity sciatica and L5 peripheral nerve condition favors its recommendation as an additionally unfitting condition for disability rating.  

Regarding the severity and rating of the right lower extremity radiculopathy condition at separation, the panel deliberated the probative value of the NARSUM and the C&P examination and their timing for post-separation healing (honeymoon period) and worsening as healing occurred (scaring), as well as clinical notes after the NARSUM and prior to separation.  The MEB examination inability to bear full weight on the right leg, NARSUM testing of 5/5 (normal) motor strength, and the VA testing of 4/5 motor strength 1 month after separation were weighed by the panel.  Pain from the nerve involvement, is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The panel adjudged that the C&P examination was closest to separation and had the highest probative value for rating at separation.  In addition to the right leg sensory deficits, the VA examiner also detailed multiple right leg muscles with decreased strength and identified the nerve involved as the sciatic.  There was no foot drop and no muscle atrophy.  The panel therefore considered if the documented muscle weakness and sensory loss was closest to “mild,” “moderate,” or “moderately severe” incomplete paralysis under the sciatic nerve codes (8520  – paralysis, and 8620 - neuritis) and IAW VASRD§4.120 (evaluation by comparison) and §4.123 (neuritis, cranial or peripheral).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% (moderate) for the additionally unfitting right lower extremity radiculopathy condition, coded 8620-8520.  

Contended PEB Conditions:  Myopia and Hypertriglyceridemia.  The panel’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, implicated in the commander’s statement or judged to fail retention standards.  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 panel 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.  

BOARD FINDINGS:  In the matter of the low back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended right lower extremity radiculopathy condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 20%, coded 8620-8520, IAW VASRD §4.124a.  In the matter of the contended myopia and hypertriglyceridemia conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are 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; 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	5243	20%	
Right Lower Extremity Sciatica	8620-8520	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150717, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010030, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:
  
	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure