RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02063
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20051102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E5, Combat Engineer, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  The applicant requested a review of 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 conditions at the time of separation.  The panel has neither the role nor the authority to compensate for after 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 - 20051005	VARD - 20090114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5241	10%	Degenerative Disc Disease, Degenerative Joint Disease, L4-L5, S/P Lumbar Fusion	5243	40%	20081215	
Upper Airway Resistance Syndrome	Not Unfitting 	Upper Airway Resistance Syndrome	6847	50%	20081215	
Persistent Left Orchialgia		Traumatic Orchialgia, Left, S/P Spermatocelectomy	7525	0%	20081215	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially underwent a laminotomy at L4 and an anterior lumbar interbody fusion in 1998 and re-injured his back in May 2004 in a fall down a flight of stairs.  Thereafter he had unrelenting back pain.  X-rays on 7 December 2004 of the lumbar spine showed changes from the L4-5 fusion with two separate intervertebral prostheses in satisfactory placement.  Magnetic resonance imaging (MRI) on 10 December 2004 noted no significant disc bulges or protrusions were found.  The CI reported his left leg felt “torn up.”  Treatment consisted of meloxicam, a nonsteroidal anti-inflammatory drug (NSAID) and methocarbamol, a muscle relaxer.  One day later the CI received an injection of ketorolac, an NSAID, and oral ketorolac was substituted for the meloxicam.  Computerized tomography (CT) dated 11 January 2005 demonstrated adequate visualization status post discectomy with fusion at L4-5 and partial sacralization of the L5 vertebral body bilaterally; however, an orthopedic surgeon noted a non-union through the level of the fusion at L4-5 level.  The CI then underwent posterolateral instrumentation and fusion of L4/5 surgery on 24 January 2005.  Lumbar spine X-rays on 11 February 2005 showed fusion changes at the level of L4-5 with adequate alignment of the hardware as did X-rays on 11 March 2005.  At an orthopedic spine clinic appointment on 12 April 2005, 3 months after surgery, the CI reported complete resolution of his lower back pain, however, he did report pain on the anterior and medial aspect of his right thigh and stiffness in his left lower extremity.  Physical examination showed no erythema or swelling, diminished sensation over the anterior right thigh, a normal motor examination with normal strength, no tenderness to palpation, and a full range of motion (ROM) at the knee and hip.  

During the 20 May and 2 June 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported numbness, tingling and weakness in both legs due to back trouble post fusion on 4 January 2005.  The examiner noted 3 surgeries and scars.  An MRI dated 31 May 2005 demonstrated no evidence of hardware failure or postoperative complication otherwise evident.  At a physical medicine clinic appointment on 9 June 2005, the CI reported continued back pain with a severity of 9/10 (10 being the worst pain) and some right anterior thigh pain, cramping, and numbness.  Pain was worse with movements and improved with laying down.  Physical examination showed loss of normal lumbar lordosis, tenderness to palpation, and spasms of the paraspinal muscles.  The lumbosacral spine did not demonstrate full ROM; pain was elicited by flexion and by extension movement; and limping was noted on the left.  Straight leg raising test was negative for radiculopathy.  Medial branch blocks with an anesthetic (Marcaine (bupivacaine)) were given for facet mediated pain on 15 June 2005.  

The MEB NARSUM examination on 15 June 2005, 5 months prior to separation, noted complaints of low back pain.  Physical examination showed that the CI was in minimal distress, had some difficulty arising from a chair, and used a walking aid.  The CI had a negative straight leg raise and negative crossed straight leg raise, which caused back pain without any radicular symptoms.  Motor strength was normal.  There was decreased sensation of the anterior aspect of the right thigh in the distribution of the lateral femoral cutaneous nerve.  He had tenderness to palpation over the iliac crest on the right.  Reflexes of the lower extremities were normal. ROM measurements showed flexion 30 degrees (normal 90) and a combined ROM of 120 degrees (normal 240).  The examiner noted radiographic (X-ray) studies showed hardware in good position, with bone graft in place, while an MRI showed no impingement on the nerve roots, no herniated discs, and no evidence of infection.  The examiner opined that the CI would require approximately 8-12 months of rehabilitation prior to returning to full active duty status.

At a physical therapy visit on 23 September 2005 ROM measurements for the MEB were flexion 103, 106, and 102 degrees with a combined ROM of 220 degrees.  X-rays of the right hip dated 17 October 2005, ordered for a nodule overlying the bone graft donor site, were normal.  At a physical therapy appointment on 19 October 2005, the CI “stated that he has had lumbar fusion and thought that pain was better but has muscle spasms that have caused recurrence of pain into right lower extremity.” Physical examination showed an antalgic gait pattern and dragging the lower extremity, tenderness to palpation, moderate muscle guarding of the right paraspinal muscles, a positive quadrant test (to assess lumbar facet joints), a positive prone knee bend test (to determine entrapment of the femoral nerve and L2-L4 nerve roots), a positive straight leg raise test (to determine spinal nerve root irritation), and a negative Faber test (to determine hip pathology).  ROM measurements showed a flexion of 50% (45 degrees) and a combined ROM of 150 degrees.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% (EPTS factor undetermined with permanent service aggravation), coded 5241 (spinal fusion), citing no significant loss of lumbar motion, no radiculopathy or chronic muscle spasm.   The VA rated the back condition 40%, coded 5243 (intervertebral disc syndrome) citing limitation of motion of the thoracolumbar spine with additional loss due to pain that is the functional equivalent of forward flexion limited to 30 degrees or less based on the C&P examination 3 years and 1 month after separation.  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) reported on the physical therapy examination 1 month prior to separation.  It was noted that muscle spasm and guarding associated with an abnormal gait was present on the service examinations.  The panel concluded that this was a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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 chronic low back pain condition, coded 5241.  

Contended PEB Conditions:  Upper Airway Resistance Syndrome and Persistent Left Orchialgia.  The panel’s main charge is to assess the fairness of the PEB’s determination that the upper airway resistance syndrome and persistent left orchialgia conditions were not unfitting.  The upper airway resistance syndrome condition was profiled; however, it was not implicated in the commander’s statement, but was determined by the MEB to fail retention standards, although the PEB found it not unfitting.  The persistent left orchialgia was not profiled, implicated in the commander’s statement or determined or judged to fail retention standards.   

Upper Airway Resistance Syndrome.  A CT scan of the CI’s sinuses in September 2004 demonstrated post-surgical changes, including partial resection of the middle turbinates and partial anterior ethmoidectomy along with a partially occluded left ostiomeatal unit (a channel that connects the sinuses to the middle meatus in the nose).  In December 2004 the CI reported difficulty breathing with his left nostril despite taking Flonase (a nasal steroid) and Zyrtec (cetirizine, an antihistamine).  On examination there was no frontal or maxillary sinus pressure.  The nose had a mild left deviation and the turbinates were erythematous (red) without drainage.  In April 2005, while awaiting an MEB, the CI with a history of sinus surgeries had continued recurrent sinusitis with decreased flow and difficulty breathing through the nose.  The CI had a prior diagnosis of sleep apnea.  Treatment consisted of Augmentin (an oral antibiotic combination of amoxicillin and clavulanic acid) and mupirocin (a topical antibiotic).  Pulmonary evaluation in May 2005 revealed the CI had a history of obstructive sleep apnea diagnosed in 2003 and was treated with a uvulopalatopharyngoplasty (throat surgery)  followed by a revision, which resolved his snoring, but he continued to have daytime somnolence and known risk factors including body habitus, recent weight gain, unrefreshing sleep, and witnessed apneas.  A chest X-ray in June 2005 demonstrated low lung volumes, no infiltrates, and a cardia silhouette within normal limits.  A CT scan of the sinuses on 3 June 2005 was consistent with bilateral mucous retention cysts, polyps, or sinusitis.  Sleep apnea was reported 13 June 2005 and sinusitis was treated on 14 June 2005 with Augmentin and loratadine (an antihistamine).  At a pulmonary follow-up Group Medical Appointment instructions were given for the initiation and use of continuous positive airway pressure (CPAP) therapy.  

Persistent Left Orchialgia.  In December 2004 the CI noted pain in the left testicle for over a year with some trauma and was treated with antibiotics for presumed epididymitis.  An ultrasound study of the testicles was normal bilaterally with no evidence of an intratesticular mass, but a small right hydrocele was noted along with a probable left inguinal hernia.  Surgical evaluation in January 2005 indicated no hernia palpable on either side.  The CI underwent a surgical exploration of the left scrotum because of point tenderness at the level of the left epididymis and left cord structures.  A cord lipoma (a benign fatty tissue tumor) around the head of the epididymis and a mild left hydrocele (fluid filled sac) were excised on 31 March 2005.  A postoperative ultrasound on 20 June 2005 revealed no evidence of an intratesticular mass with an unchanged right hydrocele and prominence of the left epididymal tail with no definite focal mass.  Urological evaluation on 22 June 2005 considered the epididymal prominence to be a possible thrombosed vessel, which was treated with a scrotal support and NSAIDs.  A cord block with injections of anesthetics (Marcaine and lidocaine) and a steroid (Kenalog, triamcinolone) resolved the pain on 12 July 2005.  Another cord block was performed on 16 September 2005 to resolve residual discomfort.  

There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions; and so, no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended upper airway resistance syndrome and persistent left orchialgia 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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150728, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011075, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed XXXXXXXXXXXXXXXXXXX application and found that his 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 his 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