RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02407
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050722

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Administrative Specialist, medically separated for “chronic low back pain …” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that his back should have been rated at 20% and that he should have received a separate rating of at least 10% for left sciatica.  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 determinations 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 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 - 20050511	VARD - 20051115	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain … The Soldier has Decreased Sensation over the Left Foot and Calf…	5237	10%	Lumbar Spine DDD	5242	20%	20050606	
			Left Sciatica	8520	20%	20050606	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  PEB Disability Description:  “Chronic Low Back Pain with L5/S1 degenerative disc disease and laminectomy/discectomy.  The Soldier continued to have pain after surgery.  He had tenderness on palpation over the lumbar spine.  There was also tenderness over the left sacroiliac joint.  The passive flexion was 60 degrees with moderate pain.  There was more severe pain on extension.  The Soldier has decreased sensation over the left foot and calf.  Further surgery is not indicated at this time.  The nerve sheath abnormality was diagnosed as a ganglion and not a tumor.  (MEB Dx 1-2)”  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery (lumbar discectomy/laminectomy) in September 2004 (10 months prior to separation) for herniated disc and “elongated apparently inflamed ganglion.”  The MEB forwarded “degenerative disc disease” (DDD) and “sensory deficits of the left foot, calf, and thigh as a direct result of his back pain” for PEB adjudication.  Diagnostic imaging (MRI) conducted on 31 January 2005 showed “post-surgical change [of the] left S1 nerve root” and “minimal central disk bulge [at] L4-5.”  

At the 8 December 2004 physical therapy evaluation, 7 months prior to separation, the CI complained of severe pain with left lower extremity weakness, numbness and tingling.  Physical examination showed an antalgic gait and balance impairment.  There was decreased muscle strength on the left with ankle dorsiflexion 4+/5 and plantar flexion 3+/5; knee flexion/extension and hip flexion were 4/5 (normal 5/5).  Assessment stated “3 month post-op spinal disc surgery and nerve root neuroma resection with functional gait and balance impairments.”  At the pain management examination on 28 December 2004, 7 months prior to separation (3 months after surgery), the CI complained of back pain and left lower extremity pain with numbness and tingling.  The CI denied bowel or bladder dysfunction.  On examination the CI was noted to have an antalgic gait and was ambulating with a cane.  There was tenderness of the back.  Motor strength was normal, but “sensory examination revealed decreased sensation to pinprick and cold in the left S1 and L5 distribution” (sciatic nerve) and reflexes were decreased on the left.  Straight leg raise testing (provocative tests for radicular symptoms), though, were negative.  At the 23 March 2005 MEB examination (recorded on the MEB NARSUM and DD Forms 2807-1 and 2808), 6 months after surgery and 4 months prior to separation, the CI reported pain located in his mid-back that radiated down to his buttocks and left leg.  He also complained of “residual numbness in the left foot with a sensation of tingling around the lateral aspect of the left foot and up the posterior calf and thigh.”  His pain worsened with prolonged standing, walking, rising from a seated position, exposure to cold weather, bending, lifting, or twisting.  The general examination performed that day recorded the exam “was normal except for the longitudinal surgical scar over the lumbar spine; pain and reduced range of motion of the thoracolumbar spine; and decreased sensation to light touch and cold over the plantar and lateral aspect of the left foot and up the left calf.”  A range of motion (ROM) study recorded flexion to 40 degrees (normal 90) and combined ROM at 170 degrees (normal 240), with pain noted in all planes of motion except for rotation.  The panel noted that the focused physical examination was the same as the 28 December 2004 pain management examination detailed above.  

At the 6 June 2005 VA Compensation and Pension (C&P) evaluation, performed 2 months before separation (6 months after surgery), the CI reported pain and paresthesias of the left leg worsened with prolonged walking, sitting, or standing.  Physical examination recorded ROM as flexion to 35 degrees and combined ROM at 135 degrees with pain in all planes of movement.  The examination was contradictory regarding gait, in one place listed as normal while elsewhere described as slightly antalgic.  Spinal contour was normal and there was no mention of guarding or spasm, but tenderness was present.  Straight leg raise testing was positive bilaterally.  His motor strength was normal, with dorsiflexion of the feet described as “strong,” while also noting “decreased strength in left heel-to-toe walk, but the (CI) was still able to walk on the left heel and toe.”  Sensation was decreased to light touch on the left leg, but his reflexes were normal.  

The panel directed attention to its fitness and rating recommendation based on the above evidence.  The PEB potentially combined the MEB diagnosis #1 (DDD-back) and MEB diagnosis #2 (sensory deficits of the left foot, calf, and thigh as a direct result of diagnosis #1) as a single unfitting condition coded 5237 (lumbosacral strain), and rated 10%, citing tenderness, limitation of flexion and painful motion.  

The approach by the PEB was deliberated regarding whether it was a bundling of the two MEB conditions where its judgment was that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications of MEB diagnosis #1 (DDD-back) and MEB diagnosis #2 (sensory deficit left …) or whether it was only an unfitting back condition and an implied or presumptive “not unfitting” finding for MEB diagnosis #2 (sensory deficit).  [Note: an implied not unfitting PEB determination would require a preponderance of evidence indicating that the condition should have been found to be unfitting.]  The PEB disability description is quoted above for the reader’s interpretation, as is the MEB diagnosis listing.  

The panel majority adjudged that the PEB determination was a bundling of the two MEB conditions.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.   

The VA rated the back condition 20% coded 5242 (degenerative arthritis of the spine), based on the C&P examination 2 months before separation, citing “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The VA also rated the left sciatica at 20%, citing radicular pain and sensory deficits of the left foot, calf, and thigh for incomplete paralysis below the knee which was moderate.  

Low back pain was specifically profiled and judged to fail retention standards.  The commander indicated the CI was a postal clerk and had to be reassigned to performing administrative duties due to his medical condition, but did not specifically reference the CI’s back condition or left leg sensory deficits.  The panel agreed the low back pain condition was separately unfitting and addressed the left leg sensory deficits under contended conditions (below).  Regarding the low back pain, 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 MEB NARSUM and VA examinations.  There was no documentation of incapacitating episodes which would provide for a higher rating under the formula for intervertebral disc syndrome.  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.  

Contended PEB Condition.  As noted above, the panel majority considered the MEB diagnosis #2, sensory deficits of the left foot, calf, and thigh, to have been an unbundled condition.  The panel next considered if the condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  

The left leg sensory deficit was not specifically listed on the Physical Profile (DA Form 3349), which instead listed “lumbar spine surgery,” coded L3, and reflected significant duty restrictions.  The left leg sensory condition was judged to separately fail retention standards by the NARSUM and the MEB.  The commander’s statement indicated the CI was a postal clerk and had to be reassigned to performing administrative duties due to his medical condition, but did not specifically reference the back condition or left leg sensory condition.  Multiple examinations in evidence indicated that the CI had an antalgic gait with left lower extremity sensory deficits, and slight motor deficits.  There was evidence of balance impairment at the PT examination (3 months after surgery and 7 months prior to separation), use of a cane at the NARSUM, and weakness on left heel-to toe walk and a slightly antalgic gait (at the pre-separation C&P which was closest to separation and most remote from surgery (to allow for healing and/or scarring).  Although back pain alone might cause imbalance and use of a cane, the CI’s radicular findings and sensory deficits (proprioception/balance) were at least as likely to be the cause, in the judgment of the panel majority.  Since undue speculation would be required to conclude that left peripheral nerve impairment would not have unacceptably interfered with the performance of military duties, the panel majority judged that the condition was reasonably justified as separately unfitting.  The majority concluded there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled sensory deficits of the left foot, calf, and thigh was reasonably considered separately unfitting.  

The panel next considered its rating recommendation for the unfitting sensory deficits at the time of separation.  With regard to rating the condition, the panel considered VASRD §4.120 (evaluations by comparison) and VASRD §4.123 (neuritis, cranial or peripheral).  All members agreed that the CI’s disability condition did not meet the §4.123 maximum “moderately severe” sciatic neuritis level and deliberations centered on if the left leg peripheral nerve condition was closer to meeting the “mild” (10%) or “moderate” (20%) rating level under the sciatic nerve code (8620).  The panel majority agreed that the CI’s disability at separation met the “mild, incomplete partial paralysis” criteria (10%, coded 8699-8620), and did not more nearly approximate the next higher “moderate” disability level.  After due deliberation, and considering all of the evidence, the panel majority recommends a separately unfit determination with a disability rating of 10% for the left foot, calf, and thigh.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended sensory deficits of the left foot, calf, and thigh, the panel majority agrees that it was unfitting and recommends a disability rating of 10%, coded 8699-8620 IAW VASRD §4.124a.  The single voter for dissent submitted the appended minority opinion.  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, and that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain … 	5242	20%	
Sensory Deficits of the Left Foot, Calf, & Thigh	8699-8620	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150925, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion

The first error by the majority is the interpretation of MEB diagnosis 2 as one of two improperly bundled unfitting conditions.  This erroneous interpretation shifts the evidentiary threshold requirement from a preponderance to find the sensory deficits separately unfitting, to a preponderance required to show the same condition not separately unfitting.  Basically, the burden of proof shifted from proving sensory deficits unfitting to proving them not unfitting, as shown by a preponderance of evidence.  The PEB may have listed the MEB diagnoses together, but the PEB specifically listed the unfitting condition in the first sentence (“Chronic Low Back Pain with L5/S1 degenerative disc disease and laminectomy/discectomy.”) followed by an explanation of the circumstances of the unfitting condition.  Part of that explanation, almost at the end, was description of the decreased sensation deficit, and this was clearly a descriptive remark that the CI happened to also have decreased sensation in his left foot, calf, and thigh.  It was decidedly not a listing of an unfitting condition. 

Once the preponderance has wrongly been shifted by the panel majority, though, the majority opinion compounds its error by ignoring performance-based evidence that sensory deficits were not unfitting; the Physical Profile clearly listed “lumbar spine surgery” as the medical condition that limited duties, and did not list sensory deficits.  As described above, the commander’s statement did not specify sensory deficits as limiting performance, but instead listed the “restrictive profile,” “physical condition,” and “medical condition.”  To argue that objective findings at the NARSUM examination (4 months pre-separation) of “decreased sensation to light touch and cold over the plantar and lateral aspect of the left foot and up the left calf” strains credulity.  Furthermore, at the C&P examination 2 months prior to separation, the sensory deficits the majority judges as unfitting were described as merely “decreased to light touch.” Strength was normal with “strong dorsiflexion” (ie, no motor weakness); the examiner did arguably indicate some difficulty with heel-to-toe walking, but in a contradictory manner (described above) that was far from a clear-cut case of impairment.

Finally, the panel majority makes the error of rating the sensory deficit to light touch, mistakenly judged to be unfitting, at a 10% disability.  There is no minimum rating level for neuritis mandated by the VASRD, and the CI’s disability due to decreased sensation would be rated as 0% at most for “average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations” (VASRD §4.1, Essentials of evaluative rating).  

First, the minority recommends the decreased sensation in the left foot, calf, and thigh as not unfitting.  Second, if determined by the Secretary of the Army to be unfitting, the minority recommends a rating of 0% for decreased sensation in the left foot, calf, and thigh, for a combined disability rating of 20%; 20% for low back pain and either not unfitting or 0% for the decreased sensation of the left foot, calf, and thigh.

AR20170014054, 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 30% 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