RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00764
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Signal Support Systems, medically separated for “residual low back pain” with a disability rating of 20%.  

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 - 20040706	VARD - 20050317	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual Low Back Pain	5243 

5299 5237	20%	Intervertebral Disc Syndrome, Status Post Microdiskectomy L5-S1	5237-5243	20%	20050216	
Intermittent Left Lower Extremity Pain, Numbness and Tingling Left L5-S1 Hemilaminectomy and Diskectomy			Neuropathy, Left Lower Extremity, Associated with Intervertebral Disk Syndrome S/P (Status Post) Microdisketomy L5-S1	8521	10%	20050216	
Adjustment Disorder with Mixed Disturbance of Emotion and Conduct	Not Unfitting	Adjustment Disorder	9499-9400	Deferred	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Residual Low Back Pain with Intermittent Left Lower Extremity Pain, Numbness, Tingling and Weakness Status Post L5-S1 Left Hemilaminectomy and Diskectomy.  The PEB combined residual low back pain with intermittent left lower extremity pain, numbness, tingling and weakness status post L5-S1 left hemilaminectomy and diskectomy conditions as a single unfitting condition coded 5243 5299 5237 (intervertebral disk syndrome-lumbosacral strain) and rated 20%. The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel’s initial charge in this case was 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 evidence for the residual low back pain with intermittent left lower extremity pain, numbness, tingling and weakness status post L5-S1 left hemilaminectomy and diskectomy conditions is presented together below.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s residual low back with intermittent left lower extremity pain condition began in April 2002 after hard physical training exercises.  Magnetic resonance imaging (MRI) of the lumbosacral spine demonstrated an L5-S1 left herniated disc with impingement with mild degenerative joint disease at L4-5 and moderate at L5-S1.  Treatment was conservative with physical therapy.  He underwent a left microdiskectomy at L5-S1 on 9 January 2003.  

On 4 March 2003 at a neurosurgical evaluation, the CI reported minimal low back pain and left calf pain.  On examination he was able to flex so that his hands were almost to his feet.  On 18 March 2003 he reported hip and lateral thigh pain intermittently with exertion. Magnetic resonance imaging (MRI) in March 2003 showed an eccentric disk extrusion at the level of L4-L5 with moderate generalized degenerative changes of L5-S1 intervertebral disks, which a neurosurgeon noted was a fragment not to the preoperative microdiskectomy size and mild displacement of the S1 root.  An epidural steroid injection was considered.  

The CI hurt his back again in May 2003 while moving furniture.  At a physical therapy clinic visit on 18 June 2003 the CI complained of pain in the left lower back and buttock radiating to the posterior/lateral left lower extremity with numbness and tingling of the left heel.  On examination, his gait was non-antalgic and his flexion was limited to 40 degrees (normal 90) along with limited side bending and rotation.  Straight leg raising was positive and he had a very tight piriformis muscle and was tender in the paraspinal area from L3 to L5, left greater than right.  The examiner’s revised assessment was s/p lumbar discectomy with known new disc fragment with left sciatica and localized muscle guarding and associated muscle tightness.  
  
The 19 June 2003 MEB NARSUM examination, 14 months prior to separation, noted complaints of continued residual low back pain with intermittent left lower extremity pain, numbness, tingling and weakness.  Physical examination showed the CI walked with a limp secondary to his left lower extremity symptoms.  No tenderness of the lumbar spine was noted.  There was a well-healed incision over the lower lumbar spinous processes.  Strength was 5/5 in the lower extremities.  He had a positive straight leg raise (to determine nerve root irritation) on the left and negative on the right.  Reflexes were 2+ bilaterally and sensation was decreased in the left S1 distribution compared to the right, otherwise he was neurologically intact.  

At a family practice clinic visit on 15 July 2003, flexion was limited to 40 degrees by pain (normal 90).  The left calf circumference was 38.5 cm on the left and 40 cm on the right.  Pamelor (nortriptyline, an antidepressant medication and for nerve pain) was added for pain management.  Physical therapy range of motion measurements on 24 July 2003 were flexion 85 degrees (normal 90) and combined ROM of 200 degrees (normal 240), with pain on multiple planes.  

The CI had an exacerbation of low back pain after moving to a new barracks in March 2004.  At a physical therapy clinic visit on 1 April 2004 for low back pain and lower extremity radicular pain ROM measurement of the lumbar spine were flexion 20 degrees with pain and a combined ROM of 130 degrees (normal 240) with pain with right side bending and right rotation.  

During 13 April 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported L5-S1 herniation with sciatic nerve pain; his left foot and calf had numbness and tingling; his left foot dragged; and his left leg had limited motion due to L5-S1 herniation.  The examiner noted the spine was normal on the clinical examination and listed lumbago under the summary of defects and diagnoses.  At a neurosurgery evaluation 30 April 2004, the CI had mild restriction of low back motion with a negative straight leg raise bilaterally, intact deep tendon reflexes and no motor deficit.  

The 30 April 2004 MEB neurosurgical Addendum, 4 months prior to separation, noted complaints of continued residual low back pain with some radiation into the left lower extremity.  The condition was essentially unchanged since completion of the MEB in June 2003.  Physical examination showed local tenderness in the lumbosacral region with impaired ROM of the lumbar spine.  Flexion was to only 45 degrees (normal 90), extension 20 degrees (normal 30) and lateral bending to 20 degrees (normal 30).  Straight leg raise testing was negative.  There was no neurological deficit and deep tendon reflexes were intact in the lower extremities.  

At the 16 February 2005 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported using Tylenol (acetaminophen, a pain reliever) with codeine (a narcotic) every few days for intolerable pain.  He had a constant 4-5/10 (10 being the worst pain) that increased to 7-8/10 with rolling over in bed, walking, bending, lifting, or carrying, and prolonged sitting.  With extended activity, he developed progressive pain radiation to the left hip and foot with diminished capacity to elevate the left foot for ambulation.  He developed a limp with extended walking. He reported approximately five episodes of incapacitation over the prior year that required 2 days of bed rest.  He had no bowel or bladder complaints.  Physical examination showed the CI had an asymmetric gait “with evidence of slightly prolonged stance phase on the right and effort to unweight the left pelvis.”  He had a generalized mild tenderness to palpation in the lumbosacral area.  Forward flexion was limited to 60 degrees (normal 90) and combined ROM was 175 degrees (240 normal) with pain on multiple planes.  There was a full ROM in the hips, knees, ankles and feet.  He had diminished strength in the left EHL (extensor hallucis longus) compared to the right and showed diminished strength in for heel standing on the left compared to the right and limitation in the capacity to stand on the toes of the left foot compared to the right, though probably more due to pain than motor weakness.  The left calf was 1.5 cm smaller than the right.  He had diminished sensation on the lateral aspect of the left foot, which transitioned over the anterior shin and up through the anteromedial thigh.  Deep tendon reflexes were symmetric at the knees and ankles.  X-rays showed disc disease at L5-S1.  The examiner’s diagnoses were intervertebral disk syndrome (IVDS) and neuropathy of the left lower extremity due to the IVDS.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the residual low back pain condition 20%, coded 5243-5299 5237 (intervertebral disc syndrome-lumbosacral strain), citing reduced ROM (flexion 45 degrees) following left microdiscectomy L5-S1 with complaints of periodic numbness, tingling and weakness.  The VA also rated the intervertebral disc syndrome status post microdiscectomy L5-S1 condition 20%, coded 5237-5243 (lumbosacral strain-intervertebral disc syndrome), based on the C&P examination 6 months after separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but no greater than 60 degrees.  The VA rated the neuropathy, left lower extremity associated with intervertebral disk syndrome, status post microdiscectomy L5-S1, coded 8521 (external popliteal nerve (common peroneal) paralysis of), citing incomplete paralysis of foot movements which is moderate.

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 Neurosurgical Addendum and VA examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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).  The evidence showed the CI had IVDS (disc disease causing back pain and sciatica) and experienced incapacitating episodes due to acute signs and symptoms that required treatment and bed rest prescribed by a physician.  According to review of the STR and the CI’s report at the VA examination, 6 months after separation, the total duration of incapacitation over the 12 months prior to separation was five episodes over the prior year with 2 days of bed rest.  Therefore, a 10% rating that was at least 1 week but less than 2 weeks was not achieved and a 0% rating would not result in a higher rating than the PEB rating based on limitation of motion.  

The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated with surgery; however, postoperatively an eccentric disk extrusion at the level of L4-L5 was noted on an MRI, and there were symptoms of radiating pain documented in the treatment records.  Nevertheless, examinations indicated normal strength, reflexes and sensory changes that did not affect his job.  However, at the NARSUM examination he had a limp and at the VA examination he reported that with extended activity he had a diminished capacity to elevate the left foot for ambulation and developed a limp with extended walking. On examination, he had an asymmetric gait.  There was evidence in this case that motor weakness existed to a degree that could be described as functionally impairing since there was a disc extrusion at the level of L4-L5 and the CI walked with a limp at the NARSUM examination and had an asymmetric gait at the VA examination.  Additionally, there was a disparity in measurements of the thighs and calves with the left being less than the right.  The panel determined that the motor weakness as a result of a radiculopathy was unfitting; and therefore, concluded that an additional disability rating was justified on this basis and a 10% rating using code 8520 (sciatic nerve paralysis of: incomplete mild) was warranted.  Since the neurosurgeon in the MEB Addendum indicated there was no neurological deficit and deep tendon reflexes were intact in the lower extremities, a moderate disability with a 20% rating could not be justified.  

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 residual low back pain with intermittent left lower extremity pain condition, coded 5243; and a disability rating of 10% for the residual left lower extremity radiculopathy condition, coded 8520.  
	
Contended PEB Condition:  Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the residual low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the intermittent left lower extremity pain, numbness, tingling and weakness status post L5-S1 left hemilaminectomy and diskectomy condition, the panel unanimously recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Residual Low Back Pain	5243	20%	
Intermittent Left Lower Extremity Pain, Numbness and Tingling 	8520	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017585, 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. 

Sincerely,					      
Enclosure