RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00667
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040712

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Aircraft Maintenance Apprentice, medically separated for “low back pain due to L5-S1 herniated nucleus pulposus with radiculopathy” with a disability rating of 20%.  

CI CONTENTION:  “My condition is more severe than PEB reflects on the surface.”  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 - 20040421	VARD - 20050323	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain due to L5-S1 Herniated Nucleus Pulposus with Radiculopathy	5243	20%	Lower Back Pain with Intervertebral Disc Disorder	5243	40%	20050204	
			Radiculopathy in the Left Lower Extremity	8520	20%	20050204	
			Radiculopathy in the Right Lower Extremity	8520	10%	20050204	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP) Due To L5-S1 Herniated Nucleus Pulposus with Radiculopathy.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in February 2003 with gradual onset.  At the primary care appointment on 30 July 2003, 11 months before separation, the CI complained of back pain that felt like a “pinched nerve.”  There was no radiating pain, lower extremity weakness, numbness, or tingling, and no change in bowel or bladder function.  There was tenderness to palpation in the lumbar region, and flexion was “slightly limited” due to pain.  At the 13 August 2003 physical therapy (PT) evaluation, 11 months before separation, back range of motion (ROM) was documented as flexion “< 50%.”  At the 19 September 2003 PT evaluation, 10 months before separation, the CI reported he was doing worse since he returned to his normal duties.  Back flexion was described as “< 25%.”  Magnetic resonance imaging (MRI) of the lumbar spine on 6 October 2003 showed disc extrusions at L4-L5 and L5-S1, with mild neuroforaminal (area through which the spinal nerves travel) encroachment, worse on the left than right.  At the 28 January 2004 neurosurgical evaluation, 5 months before separation, the CI reported low back and left lower extremity pain.  The examiner noted the CI appeared very uncomfortable, but was not in acute distress.  He denied bowel or bladder problems.  Physical examination showed an antalgic gait.  Muscle tone and strength was normal except for mild weakness of the extensor hallucis longus (EHL-great toe dorsiflexion), graded 4+/5.  Straight leg raise (SLR), testing to elicit nerve tension signs, was positive on the left at 15 degrees.  Sensation was decreased in the S1 distribution.  The back was described as “WNL” (within normal limits).  The CI was diagnosed with L5 radiculopathy due to the herniated discs and surgery was recommended.  However, the CI declined surgical intervention.  

The 8 March 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of continued LBP and lower left extremity paresthesias (a burning or pricking sensation).  Physical examination showed positive SLR, which produced back pain on the right at 60 degrees, and on the left at 30 degrees.  Spinal curvature was normal and no muscle atrophy was noted.  There was tenderness of the lumbar muscles and reflexes were normal bilaterally.  The NARSUM did not provide thoracolumbar spine ROM.  

At a 19 November 2004 neurology evaluation, 4 months after separation, the CI reported LBP that radiated to both LEs, associated with numbness and tingling, worse on the left than right.  Lower extremity reflexes were normal.  Electrodiagnostic studies were performed and showed evidence of L4-L5 and L5-S1 radiculopathy bilaterally, more pronounced on the left than right.  Repeat lumbar spine MRI showed worsening of the disc herniations at both L4-L5 and L5-S1, with mild to moderate neuroforaminal narrowing on the right and moderate to severe neuroforaminal narrowing on the left at L5-S1.  

At the 4 February 2005 VA Compensation and Pension (C&P) Spine evaluation, 7 months after separation, the CI reported constant LBP with some radiation in the left LE, aggravated by activity.  He denied any incapacitating episodes.  Physical examination showed that the CI walked with a limp favoring the left.  There was a normal spinal curvature without muscle spasm.  Back ROM was flexion 30 degrees (normal 90) with pain and combined ROM of 120 degrees, all motions with pain.  Neurological examination of both LEs was normal, except for positive SLR bilaterally.  At the C&P general medical examination performed on the same day, physical examination noted normal strength and symmetric reflexes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 20%, coded 5243 (intervertebral disc syndrome).  The VA rated the LBP condition 40%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 7 months after separation, citing limitation of forward flexion of 30 degrees or less.  The VA also provided a 20% rating for left LE radiculopathy and 10% for right LE radiculopathy, both coded 8520 (sciatic nerve, incomplete paralysis).  In the 12 months before separation three of four examinations in the STR referenced thoracolumbar ROM consistent with the PEB’s 20% rating, including the neurosurgical examination most proximate to separation.  The MEB NARSUM did not note thoracolumbar ROM and thus did not provide evidence to recommend a rating higher than that of the PEB.  Post-separation the neurological examination 4 months after separation and the VA examination 7 months after separation support that the back condition worsened after separation.  However, there was no evidence to support that the limited ROM at the VA examination reflected the disability due to the back condition at the time of separation.  Therefore, the panel determined the evidence supports that at separation a 20% rating and no higher for limitation of flexion (greater than 30 degrees but not greater than 60 degrees.  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 IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  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 low back condition.  

The panel also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  During active duty, the CI was diagnosed with a left L5 radiculopathy related to the lumbar spine condition and the electrodiagnostic studies after separation showed lumbar radiculopathies of both lower extremities.  However, the presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition as additionally unfitting and eligible for Service rating.  Pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The neurosurgical visit 6 months before separation, noted normal strength of the lower extremities, except for mild decreased EHL strength and decreased sensation in the S1 distribution (appeared to refer to left LE).  The post-separation VA examinations followed the worsened MRI and positive electrodiagnostic studies and both noted normal LE strength and reflexes, and the VA C&P Spine examination implied there was no sensory deficit appreciated, stating there were no “neurological deficiencies.”  There was no evidence in this case that motor weakness or a sensory deficit of either LE existed to any degree that could be described as functionally impairing proximate to separation.  The panel therefore concluded that an additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the low back pain due to L5-S1 herniated nucleus pulposus with radiculopathy condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160917, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

SAF/MRB

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00667.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  The Board recommended no re-characterization or modification of your separation.

I carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings