RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00692
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20081020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “lumbar degenerative disc disease” and “left S1 radiculopathy,” rated 10% each, with a combined 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20080710	VARD - 20090109	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Disc Disease	5299-5242	10%	Laminectomy Syndrome, S/P Microdiscectomy	5238-5243	20%	20080729	
Left S1 Radiculopathy	8599-8520	10%	Left S1 Radiculopathy With Shooting Pain	8599-8520	10%		
Chronic Left Knee Pain	Not Unfitting	Status Post Left Knee Anterior Cruciate Ligament Reconstruction	5257-5024	0%		
Post Concussion, without Persistent Symptoms	Not Unfitting	Status Post Concussion With Post Concussive Headaches	8045	10%		
Chronic Subluxation Fingers	Not Unfitting	Chronic Subluxation of Fingers on Right Hand	5299-5220	NSC		
		Chronic Subluxation of Fingers on Left Hand	5299-5220	NSC		
Chronic Upper Extremity Intermittent Paresthesias	Not Unfitting	Right Upper Extremity Paresthesias	8599-8515	NSC		
		Left Upper Extremity Paresthesias	8599-8515	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease (DDD).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent back surgery with microdiscectomy in October 2007 for a herniated disc at the L5-S1 level.  He continued to have pain and underwent lumbar epidural steroid injection with little or no improvement.  There was no further surgical indication.  The 20 May 2008 physical therapy (PT) range of motion (ROM) study showed forward flexion of 85 degrees (normal 90) and combined ROM of 230 degrees (normal 240).  ROM was limited by pain.  There was no localized tenderness, muscle spasm, guarding, abnormal gait or abnormal spinal contour.  

The 7 July 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of chronic low back pain with inability to lift over 10 pounds or perform other strenuous activities such as unit physical training or physical fitness testing.  Physical examination showed “mild limitation of ROM” with pain radiating into the hip, more on the left.  ROM measurements were not provided.  Gait was “intact,” but there was note of mild spasm in the lumbar area. 

At the 29 July 2008 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported low back pain that came on without provocation.  He reported one incapacitating episode with physician prescribed bed rest for 2 days following his surgical procedure.  He was unable to run, jump, march, lift or participate in military training.  Physical examination showed a normal posture and gait.  ROM testing showed forward flexion of 50 degrees and combined ROM of 200 degrees.  The examiner did not ask the CI to flex beyond the point of pain.  There was no additional limitation in ROM after repetitive use.  No abnormal spinal contours were noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing normal gait, mild lumbar spasm, forward flexion of 83 degrees and combined ROM of greater than 240 degrees.  The VA rated the back condition 20%, coded 5238-5243, (spinal stenosis - intervertebral disk syndrome (IVDS)), based on the C&P examination 3 months before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees.  

In assigning probative value to these somewhat conflicting examinations, panel members noted that the ROM values reported by the VA examiner were significantly worse than those reported by the MEB NARSUM examiner and physical therapy examiner.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA or civilian measurements.  Although the C&P examination was more proximate to separation, panel 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.  

In the majority of examinations proximate to separation the panel noted ample evidence of mild limitation of motion of the thoracolumbar spine and tenderness to palpation to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that 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 back condition.  

Left S1 Radiculopathy.  According to the STR and the MEB NARSUM, the CI’s left S1 radiculopathy began in May 2007 after a bad parachute landing.  He underwent back surgery with microdiscectomy in October 2007 for a herniated disc at the L5-S1 level but continued to have low back pain and initially complained of leg weakness.  He had a neurodiagnostic study performed 26 February 2008, which showed evidence of a mild left chronic S1 radiculopathy with no evidence of ongoing axonal loss and no evidence of peripheral neuropathy.  At the 25 June 2008 rehabilitation and spine specialist visit, the CI complained of ongoing back and leg pain but denied any weakness.  Physical examination showed normal motor strength, sensation, reflexes and gait.  The 7 July 2008 MEB NARSUM examination noted complaints of continued back pain without noting if it radiated.  There was no discussion concerning weakness.  Physical examination showed normal muscle tone, mass and strength in all extremities with symmetrical reflexes.  

At the 29 July 2008 VA Compensation and Pension (C&P) evaluation bladder complaints.  Physical examination showed a negative straight leg raise (for radiculopathy), bilaterally.  Motor function was normal, bilaterally, as was sensory function.  Bilateral deep tendon reflexes were normal at the knee and ankle and the CI had a normal gait.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left S1 radiculopathy 10%, coded 8599-8520 (analogous to incomplete paralysis), citing no motor or sensory neurologic abnormalities, with electrodiagnostic study showing chronic S1 radiculopathy.  The VA also rated the left S1 radiculopathy 10%, coded 8599-8520 (analogous to incomplete paralysis), based on the C&P examination 3 months before separation, citing incomplete paralysis below the knee which is mild.  

Although the neurodiagnostic study showed a mild residual neuropathy after the discectomy, there was no evidence of muscle atrophy, decreased reflexes or muscle weakness to validate higher than a mild (10%) classification as adjudicated by the PEB.  There are no other applicable codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left S1 radiculopathy.  

Contended PEB Conditions:  Chronic Left Knee Pain, Chronic Subluxation of the Fingers and Chronic Upper Extremity Intermittent Paresthesias.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Although all of the conditions were listed on the final, permanent profile as “U-2,” they were not implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions 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 any of the contended conditions and so no additional disability ratings are recommended.

Contended PEB Condition:  Post Concussion, without Persistent Symptoms.  As above, the panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The condition was not listed on the permanent profile, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that this 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 this condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the left S1 radiculopathy condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended chronic left knee, chronic subluxation of the fingers, chronic upper extremity intermittent paresthesias and post-concussion conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20170222, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20180004739, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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