RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00948
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Infantryman, medically separated for “chronic back pain, status post (S/P) L4-5 discectomy” with a disability rating of 10%.  

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 - 20070330	VARD - 20071002	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain S/P L4-5 Discectomy	5243	10%	Chronic Low Back Pain, S/P Surgical Repair of L4-5 Herniation and Herniated Disc at L5-S1	5242	20%	20070809	
Herniated Disc at L5-S1	Not Unfitting*					
Left Radiculopathy of L5, Mild in Degree	Not Unfitting*	L5 Left Radiculopathy Associated with Chronic Low Back Pain, S/P Surgical Repair of L4-5 Herniation and Herniated Disc at L5-S1	8520	10%	20070809	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	
*Subsumed under Chronic Back Pain condition

ANALYSIS SUMMARY:  

Chronic Back Pain.  The PEB combined the three conditions of chronic back pain, a herniated disc at L5/S1 and the mild left radiculopathy of L5 under a single disability rating, coded 5243 (degenerative arthritis of the spine) and rated 10%.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if 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 chronic back pain, herniated disc s/p L4-5 discectomy and mild left radiculopathy of L5 are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic LBP condition began in October 2005 while helping to fix a tracked vehicle during a deployment to Iraq.  He was evaluated by neurosurgery in March 2006 and options were discussed which included epidural steroids or surgery.  He initially opted for epidural steroids but changed his mind.  The CI underwent a bilateral microsurgical L4/L5 discectomy on 28 June 2006.  His pain was improved but continued and became more constant to include radiculopathy into his leg.  An MRI performed in January 2007 showed post-operative changes at L4/L5 with residual canal stenosis at that level and L5/S1 related to short pedicles, disc bulge and facet disease.  

At the 2 March 2007 MEB NARSUM examination, 3 months prior to separation, the CI complained of constant achy, sharp pain in his lower back with radiation down his left leg.  His low back pain (LBP) increased in intensity after sitting for 30 to 40 minutes, standing for one hour, walking for 15 minutes and when climbing, lifting or crawling.  He reported his pain would wake him up at night one to two times four nights per week.  Physical examination showed lumbar (not thoracolumbar) flexion to 45 degrees (normal 60), 15 degrees extension, 20 degrees right lateral flexion, 25 degrees left lateral flexion, 15 degrees right and left rotation.  He had pain at the endpoint of all range of motion (ROM) measurements.  There was tenderness from L4 to S1 and the sacroiliac (SI) joints, left greater than right.  He had spasms on lower right lumbar region and a right-sided limp attributed to back pain.  He could walk on his toes and heels in a normal manner.  

At the 9 August 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported daily early morning pain which increased with prolonged standing and decreased with walking.  He reported no incapacitating episodes, flares or neurological abnormalities.  Physical examination showed ROM of 60 degrees flexion (normal 90), and combined ROM of 185 degrees (normal 240) with mild pain at each extreme.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing ROM limited by pain with tenderness.  The VA rated the LBP condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion greater than 30 degrees but not greater than 60 degrees.  

The panel first considered if the back pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The LBP was implicated in both the permanent profile and commander’s statement and was determined to fail retention standards.  Panel members agreed the evidence reasonably justified the functional limitations of the LBP condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  Panel members agreed 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 VA examination or for muscle spasms resulting in an abnormal gait as noted on the MEB NARSUM.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  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 chronic back pain condition, coded 5243.  

Herniated disc at L5-S1. After reviewing the history of the LBP condition outlined above, the  panel concluded the herniated disc condition is intrinsic to the rated LBP condition and a separate rating cannot be supported without invoking IAW VASRD §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited); thus, it is appropriately subsumed under the same rating.  

Left Radiculopathy of L5, Mild in Degree.  As noted in the chronic back pain history, the CI’s left L5 neuropathy condition also began in October 2005 during the deployment to Iraq.  During his initial injury, the CI noted sharp pain radiating down his leg accompanied by loss of bowel and bladder control.  The CI underwent a bilateral microsurgical L4/L5 discectomy on 28 June 2006, after which his pain decreased but began to include radiculopathy into his leg.  An electrodiagnostic study performed in January 2007 showed chronic L5 lumbar radiculopathy on the left, noted as mild in degree with mild denervation of the anterior tibial and gastrocnemius muscles (lower leg).  He had an MRI in January 2007 that showed post-operative changes seen at L4/L5 with residual canal stenosis at this level and in L5/S1 related to short pedicles, disc bulge and facet disease.  

At the 2 March 2007 MEB NARSUM examination, 3 months prior to separation, the CI complained of constant achy, sharp pain in his lower back with radiation down his left thigh and leg to his toes.  He reported that he was getting severe cramps on his left calf three to four times a day which would increase with increased activity.  Physical examination showed sensation was decreased in the left leg compared with the right.  Muscle strength was decreased in the left hip flexors, left knee flexors and extensors as well as left ankle plantar flexion all listed as 4+ out of 5.  The left ankle dorsiflexors were normal in strength and his ankle and knee jerk reflexes were equal bilaterally.  

At the 9 August 2007 C&P examination, 2 months after separation, the CI reported daily early morning back pain which increased with prolonged standing but decreased with walking.  He reported that his pain occasionally radiated to his left thigh and leg.  The examiner recorded no incapacitating episodes, flares and no neurological abnormalities.  Physical examination showed normal gait and stance with reflexes being equal at both knees and ankles.  There was no examination of muscle strength.  The examiner made reference to the January 2007 electrodiagnostic study.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the combined LBP, herniated disc at L5/S1 and radiculopathy condition 10%, coded 5243 (IVDS), citing ROM limited by pain with tenderness, without significant neurologic abnormality.  The VA rated the L5 left radiculopathy associated with the chronic LBP condition 10%, coded 8520 (sciatic nerve, paralysis), citing mild incomplete paralysis below the knee. 

The panel then considered if the L5 left radiculopathy condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The radiculopathy was implicated in the permanent profile and was determined to fail retention standards.  Panel members agreed the evidence reasonably justified that the functional limitations of the radiculopathy condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The neurodiagnostic study showed residual neuropathy with denervation of the muscles of the lower leg after the discectomy, and all examinations proximate to separation showed a degree of muscle weakness; however, there was no evidence of muscle atrophy to validate a severe incomplete paralysis.  The panel noted that VASRD §4.124a states, “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.”  Panel members agreed that with some degree of motor involvement the evidence supports a moderate degree of disability for a 20% rating, coded 8520.  After due deliberation and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 20% for the left leg weakness condition, coded 8520.  

BOARD FINDINGS: In the matter of the chronic back pain condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the left radiculopathy of L5 condition, the panel recommends adjudication as separately unfitting coded 8520 and rated 20%, IAW VASRD §4.124a.  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; 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 Back Pain, S/P discectomy at L4/L5	5243	20%	
Left Radiculopathy of L5	8520	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170213, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180005500, 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