RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00825
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Cannon Crewmember, medically separated for “chronic low back pain and radiculopathy of the left lower extremity” with a disability rating of 10%.  

CI CONTENTION:  “Because the condition with spinal fusion L5-S1 has become worse.”  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 - 20071101	VARD - 20080425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain and Radiculopathy of the Left Lower Extremity	5241	10%	Lumbar Post Laminectomy Syndrome with Left Radiculopathy	5241	20%	20080302	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain and Radiculopathy of the Left Lower Extremity.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s chronic back pain condition began in January 2005 without any specific injury or trauma.  The CI did state he had back pain prior to joining the military from driving.  X-rays of the lumbar spine in February 2005 were normal.  On 24 May 2005 the CI reported he twisted his back 2 weeks earlier while carrying heavy rounds.  An MRI on 31 May 2005 showed significant degenerative disc disease with a small central disc protrusion at L4-5 and a small right lateral disc protrusion at L5-S1.  The CI described his pain as sharp with numbness in the right leg, and physical therapy was instituted.  

On 18 July 2006 the CI underwent fusion surgery of L5-S1 and decompression of the L5-S1 nerve root.  His right leg symptoms had completely resolved by 31 July 2006.  Postoperatively the CI noted paresthesias (tingling) and numbness in his left lower extremity in the S1 distribution, which required increasing doses of Neurontin (gabapentin for nerve pain).  Electrodiagnostic studies showed irritation of both the L5 and S1 nerve roots on the left side and a CT myelogram showed delayed filling of the S1 nerve root on the left side.  A left-sided S1 selective nerve root block on 22 November 2006 did not relieve his symptoms.  The CI was offered exploratory lumbar spine surgery of the left L5-S1 nerve roots; however, he declined the surgery and continued to have lower back pain that radiated to the left lower extremity.  At a physical therapy (PT) appointment on 25 September 2007, 3 months prior to separation, range of motion (ROM) measurements after repetition showed a flexion of 15 degrees (normal 90) and a combined ROM of  70 degrees (normal 240).  The CI reported pain of 6-7/10 with all motions.  He walked with a cane and had a left lower extremity limp. 

The 4 October 2007 MEB NARSUM examination, 3 months prior to separation, noted the complaint of “lower back pain.”  Physical examination (incorporated from DD Form 2808) showed the spine was in line without any stop-offs or deviations.  There was tenderness over the lower lumbar spine, with no tenderness over the paraspinal muscles.  A straight leg raising test was positive for radiculopathy; deep tendon reflexes were decreased throughout; strength was normal; sensation was intact; and a Babinski test (to determine corticospinal damage) was equivocal bilaterally.  ROM measurements were not reported.  At the physical medicine and rehabilitation (PM&R) visit on 26 February 2008, lumbosacral ROM measurements were flexion 25% of full with pain, extension 75% of full, rotation 100% of full, and side-bend 50% of full.  There was tenderness to palpation of the paraspinal muscles from L4-S1 and along the midline/spinous presses L4-S1.  

At the 2 March 2008 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI complained of constant back pain rated on average 7/10 and intermittent left lower extremity pain rated 7/10.  The CI also complained of intermittent tingling and numbness in the left lower extremity involving the posterior thigh, calf, and fifth toe.  The examiner noted that the CI did not use a brace or assistive devices and there were no incapacitating episodes during the last 12 months.  Physical examination showed tenderness over the bilateral lumbar paraspinal muscles.  ROM measurements showed flexion of 45 degrees with pain at the end of the motion, and a combined ROM of 180 degrees.  There was no additional loss of motion with repetition.  Straight leg raise testing was negative for radiculopathy, and the CI had a normal gait. 

At a PT visit on 13 March 2008, flexion was reported as “loss of ROM (15)” and extension was WFL (within functional limits).  At a physical medicine visit on 26 March 2008, ROM was reported as “-25% with difficulty extending from a flexed position,”  while at a primary care visit on 14 May 2008 the back examination was recorded as “pain w/flexion 30 degrees.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain and tenderness to palpation.  The VA rated the back condition 20%, coded 5241 (spinal fusion), citing limitation of forward flexion.  The panel agreed that a 40% rating was justified for limitation of flexion of 15 degrees as reported on the PT examination, 3 months prior to separation, as well as the report of 25% of full (22.5 degrees) at the PM&R examination.  While the VA examination was slightly closer to separation, it was a post-separation examination and the improvement of flexion to 45 degrees was not unexpected since the CI was no longer in service, giving him time for rest.  Furthermore, a subsequent examination recorded “pain w/ flexion 30 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 radiculopathy.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (PT, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy other than a limp that would impact duty performance.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  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 40% for the chronic low back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the chronic low back condition, the panel recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  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, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain and Radiculopathy of the Left Lower Extremity	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170222, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180006626, 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), XXXXXXXXXXXXXXXXXX.

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