RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00126
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Petroleum Heavy Equipment Operator, medically separated for “chronic low back pain status post L5-S1 diskectomy,” with a disability rating of 20%.

CI CONTENTION:  The CI contends that he should have received a higher rating.  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 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 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 - 20050114	VARD - 20051130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Status Post L5-S1 Diskectomy 	5243	20%	Degenerative Disk Disease, Lumbar Spine, Status Post Discectomy L5-S1	5242	10%	20051020	
			Left Lower Extremity Radiculopathy	8521	30%		
RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

Chronic Low Back Pain.  According to service the treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in June 1999 without specific injury or trauma; worsening during deployment to Iraq to the point that he was redeployed for treatment in May 2004.  After unsuccessful non-surgical treatment with epidural steroid injections, an L5-S1 diskectomy was performed in August 2004, 15 months pre-separation.  MRI showed multiple disc bulges, significant on the left at L5-S1, on the right at L4-5, and minimal midline at L3-4. 

At the time of the 27 September 2004 orthopedic clinic appointment, the examiner recorded pain of 8/10, the same level as prior to the discectomy.  
On examination, forward flexion was 90 degrees (normal) with a combined range of motion (ROM) less than 210 degrees.  Deep tendon reflexes were 2+ (normal) and straight leg raise was positive.  There was decreased light touch over entire left leg.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated October 2004, 4 months prior to separation, the CI cited mid-back muscle spasms/lumbar pain, loss of strength and mobility with numbness, tingling from the lower back down the left leg to the tip of his toes and loss of left foot control and loss of bladder control with frequent urination.  The 10 November 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued radiating low back pain and referenced the previous CI reporting from the MEB examination, stating they were consistent with his lower back pain.  Physical examination showed a well-developed, well-nourished male in no acute distress with a normal gait.  There was decreased sensation over the dorsal left foot and slight decreased muscle strength of the left great toe.  Straight leg raise was negative.  Otherwise strength, sensation and reflexes were normal.  

At the 20 October 2005 VA Compensation and Pension (C&P) evaluation, performed 8 months after separation, the CI reported constant back pain with radiation down the left leg with intensity of 6-7/10 on average with flare-ups as high as 10/10, requiring cessation of work and sitting or lying down.  His current job was issuing and dispensing fuel to military vehicles.  The CI stated that he wore a lumbar support most of the time, not just at work; had a 20-pound lift limit at work and was careful to incur the help of fellow workers.  He stated he could walk 1.5 to 2 miles and, although his left leg had weakness, he had not had any falls and did not consider himself to be unsteady.  The CI’s fiancée assisted in getting his pants on over his left leg and putting on and tying his shoes; but the CI stated he could accomplish the tasks on his own--it would just take longer.  He had no physician-ordered bedrest within the previous 12 months.  Physical examination showed a well-developed, well-nourished male with a steady and normal gait, straight posture and in normal alignment and no tenderness to palpation across the back vertebrae or musculature.  There was pain at the end of rotation during ROM measurement, left greater than right.  Straight leg raises were positive in both the sitting (at 80 degrees) and supine (at 30 degrees) positions of the left leg.  Motor and sensory functions were not symmetrical; strength of the left lower extremity muscle groups was +3/5 on the left vs. +5/5 on the right.  Additionally the flexor extension on the left toe was limited and the CI could not toe walk on the left.  Lastly, sensor perception was altered with the CI’s inability to perceive sharp vs. dull, entailing the lateral thigh, calf and foot; as well as the ball of the foot and all toes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 20%, coded 5243 (intervertebral disc syndrome), citing “flexion limited to 40 degrees, no radiculopathy or muscle spasm.”  The VA rated the low back pain 10% coded 5242 (degenerative arthritis of the spine), citing thoracolumbar spine combined range of motion greater than 120 degrees but not greater than 235 degrees.  The VA also rated the “left lower extremity radiculopathy” 30% coded 8521 (incomplete paralysis of the external popliteal nerve ) citing impaired sensation, decreased strength, difficulty walking on toes and a decreased range of motion in the great toe.  Both ratings were based on the VA C&P examination 8 months after separation
  
The panel found the NARSUM examination most probative and found there was no evidence to support a rating higher than the rating adjudicated by the PEB.  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 also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  
Radiographic and electro diagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (physical medicine, PT, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  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).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the “chronic low back pain status post L5/S1 discectomy” condition.  

BOARD FINDINGS: 

In the matter of the “chronic low back pain” condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  

There were are other conditions within the panel’s scope of review for consideration.  

The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160315, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014060, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure