RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01217
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Petroleum Supply Specialist, medically separated for “chronic back pain, with lumbar herniated nucleus pulposus, without neurologic abnormality” with a disability rating of 10%.  

CI CONTENTION:  “It should be looked at according to VASRD instead of DODI 1332.39.”  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 - 20040726	VARD - 20051022	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, with Lumbar Herniated Nucleus Pulposus, without Neurologic Abnormality	5243	10%	Chronic Low Back Pain Due to Herniation of L4/L5 and L5/S1	5243	20%	20050824	
			Right Lumbar Radiculopathy	8599-8520	20%	20050824	
			Left Lumbar Radiculopathy	8599-8520	10%	20050824	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Back Pain, with Lumbar Herniated Nucleus Pulposus, without Neurologic Abnormality.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in June while doing heavy lifting.  Magnetic resonance imaging (MRI) studies in October 2003 showed multilevel moderate degenerative facet changes, multilevel disk bulges and a disc herniation at L5-S1.  A March 2004 MRI revealed moderate size disk extrusions (ruptures) at L4/L5 and L5/S1 and mild narrowing of the neural foramen (space through which the spinal nerve root passes) on the right at the L5/S1 disk level.  Conservative treatment, including physical therapy, medication, and epidural steroid injections into the facet joints, provided no benefit and the CI declined spinal fusion surgery.  An electromyogram conducted in May 2004 was abnormal, noting chronic L4-5 lumbar radiculopathy bilaterally, mild to moderately severe on the left and mild on the right; and chronic L5-S1 lumbar radiculopathy bilaterally, moderate to severe on the left and mild on the right.  The CI continued to experience significant duty limiting symptoms.  

The 14 June 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of sharp, stabbing, cramping pain in the lumbar region with daily pain radiating down both leg to the toes.  The pain was aggravated with turning, bending, lifting greater than 10 pounds, walking greater than 10 minutes, standing longer than 5 minutes, sitting for longer than an hour, or driving more than 40 miles.  Physical examination showed tenderness over the lumbar midline spine and at the bilateral sacroiliac joints, and a stiff, slow gait.  Thoracolumbar range of motion (ROM) goniometric measurements recorded flexion to 55 degrees (normal 90) and combined ROM to 155 degrees (normal 240), all limited by pain.  Lower extremity strength, sensation and reflexes were normal.  Straight leg raise testing was negative for radiating symptoms. 

At a 7 March 2005 primary care clinic visit, 6 months after separation, the CI reported his back “was not doing too badly.”  Physical examination revealed “good ROM” and no neurological abnormalities.  At an 18 July 2005 civilian pain management examination, 10 months after separation, the lumbar (not thoracolumbar) flexion was estimated to be at “about 5-10 degrees.”  Lower extremity motor strength, sensation, and reflexes were normal.  Straight leg raise testing on the right side was positive for radicular symptoms but negative on the left.  

At the 24 August 2005 VA Compensation and Pension (C&P) evaluation, 11 months after separation, the CI reported severe, constant low back pain radiating into the right buttock down to the foot and toes, and occasionally into the left buttock.  He claimed right leg weakness/numbness, and also indicated 3 incapacitating episodes requiring physician prescribed bedrest in the past 12 months, with durations lasting from 2 to 3 weeks (each which could not be entirely confirmed in the STR).  Physical examination showed muscle spasm causing an abnormal spinal contour in that the normal thoracic and lumbar curves were reduced.  Thoracolumbar ROM after repetition, using a goniometer, was flexion to 25 degrees (normal 90) and combined ROM of 100 degrees (normal 240), all limited by pain.  Lower extremity sensation, muscle strength and reflexes were normal, but provocative measures for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were positive on the right.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disk syndrome), citing no neurologic abnormality and thoracolumbar ROM limited by pain with localized tenderness.  The VA rated the back condition 20%, coded 5243, (intervertebral disk syndrome), based on the C&P examination 11 months after separation, citing combined limitation of motion not greater than 120 degrees.  The VA additionally rated right lumbar radiculopathy 20%, analogously coded 8599-8520 (moderate paralysis of the sciatic nerve) and left lumbar radiculopathy 10%, also analogously coded 8599-8520.  

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) as reported on the MEB NARSUM examination.  Members noted the limitation of thoracolumbar motion recorded in the C&P evaluation and the July 2005 civilian pain management examination met the threshold for a 40% rating.  In assigning probative value to these somewhat conflicting examinations, members noted that the ROM values reported by the VA and civilian examiners (10-11 months after separation) were significantly worse than those reported by the MEB examiner (3 months before separation). There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA or civilian measurements.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the later measurements.  Members agreed that the MEB NARSUM examination was more consistent with the preponderance of evidence in the STR and more reflective of the anticipated severity based on the clinical pathology at time of separation, and therefore relied more heavily on these ROM measurements. 

The panel next 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, and reported three incapacitating episodes at the VA C&P evaluation, there was no corroborating evidence to support this claim in the treatment records provided.  The first episode of incapacitation from IVDS was noted to be 6 months before separation and there was a total of 24 days of physician-prescribed bedrest prior to separation which would substantiate a 20% rating.  Members noted that this did not provide a rating advantage to the CI.  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:  Lumbar Radiculopathy.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The panel noted that the PEB considered radiculopathy in its adjudication, rendered a de facto “not unfitting” determination by not explicitly addressing the MEB’s submission of radiculopathy, and the CI contended this condition.  The CI had a herniated disc with radicular pain, with symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  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 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.  

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 lumbar radiculopathy condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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 Back Pain, with Lumbar Herniated Nucleus Pulposus, without Neurologic Abnormality	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018937, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

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