RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00749
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20060808

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated for “chronic low back pain” and “left ankle pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  “I did not receive the proper rating for my back and left leg which I should have been awarded a higher percentage.”  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 - 20060531	VARD - 20070118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Chronic Neuropathic Pain Syndrome with Left Paracentral Disc Herniation L5-S1	5243 	20%	20060814	
Left Ankle Pain	5272	10%	 Residuals Left Ankle Fusion	5272	20%	20060814	
Reflex Sympathetic Dystrophy	Not Unfitting 	Reflex Sympathetic Dystrophy, Left Leg	8620	40%	20060814	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in April 2004 after falling off a truck while wearing combat gear.  X-ray studies revealed multi-level degenerative disc disease with disc herniation at L5-S1.  The spine surgeon recommended non-surgical treatment.  The 8 December 2005 MEB NARSUM examination, 8 months prior to separation, noted complaints of back stiffness that worsened with prolonged sitting or standing.  The physical examination revealed spinal tenderness.  Thoracolumbar range of motion (ROM) showed a normal forward flexion with left and right lateral flexion at “50%” and “75%,” respectively.  Straight leg raise testing on the left caused pain in the lower back and thigh.   

The 23 January 2006 physical therapy (PT) ROM evaluation, 7 months prior to separation, revealed forward flexion of 55 degrees (normal 90) and combined thoracolumbar ROM of 200 degrees (normal 240), after repetition.  There was no report of painful motion.  Electro-diagnostic studies performed on 29 March 2006 were equivocal and demonstrated a “probable, mild, recent (acute/subacute or ongoing) superimposed on chronic or old, left S-1 radiculopathy.”  On 1 May 2006, the CI had a dorsal column stimulator placed in his back which diminished the pain intensity.     

At the 14 August 2006 VA Compensation and Pension (C&P) evaluation, 6 days after separation, the CI reported continued chronic back pain.  He denied bowel or bladder changes.  His physical examination revealed back tenderness without spasm.  Provocative maneuvers to elicit radicular signs and to detect disc pathology were positive, causing pain throughout the lower back and left buttock.  Motor testing revealed very mild weakness in the left lower extremity and was numerically documented as 4.5/5.  Peripheral sensation was intact.  Thoracolumbar ROM showed forward flexion to 50 degrees, after repetition, with total combined ROM of 165.  There was no additional weakness or fatigability noted with repetitive motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5243 (intervertebral disc syndrome), citing tenderness and pain with ROM and old left S1 radiculopathy (not independently ratable).  The VA rated the back condition at 20%, coded 5243, based upon the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel first considered the probative value of the examinations in this case.  The MEB NARSUM reported normal forward flexion of the thoracolumbar spine; however, its unconventional documentation coupled with the lack of a measured rotational component lent little probative value when compared to the PT and C&P evaluations.  The PT and C&P evaluations were proximal to the time of separation and both met the VASRD criteria for a 20% rating due to limitation of flexion greater than 30 degrees but not greater than 60 degrees.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to a radiculopathy.  The CI had abnormal spinal pathology with radicular pain and there were symptoms of radiating pain documented in the treatment record.  Radiographic and electro-diagnostic studies supported some possible level of radicular nerve irritation or involvement, but physical examinations proximate to separation revealed no objective findings of radiculopathy that would adversely impact duty performance.  While the CI may have suffered additional pain (into the left buttocks) 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.  Although weakness was identified in muscles of the left leg, the degree of such loss was minimal and panel members agreed that there was no “significant motor weakness” that was “functionally impairing.”  Therefore, the panel 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 recommends a disability rating of 20% for the back condition, coded 5243.  

Left Ankle Pain.  According to the STR and MEB NARSUM, the CI underwent left ankle surgery that included fusion of the proximal foot bone and the heel bone via insertion of a screw in August 2005.  The 8 December 2005 MEB NARSUM, 8 months prior to separation, noted the CI had to keep moving his left ankle to prevent stiffening or locking up.  The physical examination showed tenderness and swelling of the left foot.  Dorsiflexion was reduced, but ROM measurements were not listed.  The 23 January 2006 PT ROM study, 7 months prior to separation, revealed normal plantar flexion and 2 degrees of dorsiflexion (normal 20), after repetition.  Painful motion was not addressed.  A 9 March 2006 MEB addendum noted that the left ankle fusion remained in “a good weight-bearing position.”  A 20 March 2006 X-ray showed “the joint space now totally obliterated secondary to fusion.”  

At the 14 August 2006 C&P examination the CI reported left ankle swelling and throbbing that was very stiff and had a locking sensation.  The physical examination revealed a normal gait.  The left ankle was visibly larger than the right.  ROM measurements of the left ankle were documented as dorsiflexion of 5 degrees and plantar flexion of 40 degrees (normal 45).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left ankle condition at 10%, coded 5272 (ankylosis of the subastragalar or tarsal joint), citing subtalar ankylosis in good weight bearing position.  The VA rated the left ankle condition at 20%, coded 5271 (limited motion of the ankle), citing decreased ROM and pain with repetitive motion.

Panel members agreed that VASRD code 5272 as utilized by the PEB was appropriate given the surgical procedure that was performed on the CI; however, the CI’s limitation of ankle motion was also considered under code 5271 as either “moderate” at 10% or “marked” at 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel agreed that the single directional (non-alkylosed) limitation of motion coupled with the near normal ROM in the opposing direction did not support a degree of impaired motion limitation greater than “moderate” at 10%.  Therefore, the panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the left ankle condition.  
  
Contended PEB Condition:  Reflex Sympathetic Dystrophy (RSD).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Although the contended condition was not specifically implicated in the commander’s statement, it was profiled and judged to fail retention standards, but despite these facts, the PEB found the condition to be not unfitting.  

At the 8 December 2005 NARSUM examination, the CI endorsed difficulty with working the clutch while driving.  The physical examination revealed “uniform swelling of the left foot, leg and distal thigh as compared to the right…foot with bluish color change as well as pain,” and the left foot and leg often feeling colder compared to the right.  At the VA examination, 6 days after separation, the CI endorsed continued pain, discoloration, hypersensitivity, and a sense of throbbing in the left leg, ankle and foot.  The physical examination revealed mild uniform non-pitting (not causing an indentation of the skin when pressure is applied) edema (swelling) to the left leg.  Tenderness of the left leg was present.

Although the CI was performing minimum duties while being assigned to a medical hold company, the duty requirements of a motor vehicle operator, especially when attempting to work the pedals of any vehicle with a manual clutch pedal, support an unfitting determination, especially given the adverse physical symptoms of continued left lower extremity pain coupled with altered and fluctuating sensations.  After due deliberation, the panel agreed that the preponderance of evidence with regard to the functional impairment of the CI’s RSD condition favors its recommendation as an additional separately unfitting condition for disability rating.

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the RSD condition at 40%, coded 8620 (neuritis of the sciatic nerve) based on the C&P examination, citing incomplete paralysis below the knee.  The VASRD guidelines indicate that RSD be analogized under the 87XX series and that “if less than the entire limb is affected, rate according to the most affected peripheral nerve."  The VA examination, proximal to separation, clearly revealed that the “entire left lower extremity” was not involved and therefore, VASRD dictates that the rating correspond only to the affected peripheral nerve.  Panel members agreed that the most clinically appropriate nerve code in this case was 8721 (neuralgia; common peroneal nerve).  Members further agreed that in light of the CI’s ability of having “difficulty” in the use of a clutch and not a complete “inability” to utilize such a vehicle would not support any described impairment greater than “moderate” at 20%.  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 left lower extremity RSD condition, coded 8721.

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the left ankle condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left lower extremity RSD condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 20%, coded 8721 IAW VASRD §4.124a.  There are 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, 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	
Low Back Pain	5243	20%	
Left Ankle Pain	5272	10%	
Reflex Sympathetic Dystrophy	8721	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170215, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004808, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:  

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 40% 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure