RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01090
BRANCH OF SERVICE:  army	SEPARATION DATE:  20051026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Tank Crewman, medically separated for “chronic back pain with radiation to left leg” and “chronic pain, right hip,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  His ratings were too low.  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 - 20050930	VARD - 20050804	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5243	10%	Post Laminectomy, Lumbar Spine	5299-5243	20%	20050528	
			Radiculopathy, Left Lower, Associated with Post Laminectomy, Lumbar Spine	8520	10%	20050528	
Chronic Pain, Right Hip	5099-5003	10%	Degenerative Joint Disease, Posttraumatic Osteonecrosis, Right Hip	5010	10%	20050528	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI fell off a tank in January 2003 during a training exercise, landing on gravel.  He reported pain in the lower back and numbness down both legs.  The CI was diagnosed with L4-S1 stenosis and L5-S1 herniated discs.  Neurosurgeons performed several procedures on his lower back with the symptoms resolving immediately post-operatively.  However, in 2 weeks the pain recurred to the lower back and the numbness recurred in his left leg.  Neuroimaging in March 2003 showed severe lower back concerns with multiple disc problems.  

At the 28 May 2005 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported pain in his back, numbness and tingling in his left lower extremity, and some weakness in both lower extremities with walking.  Physical therapy had not provided much relief.  The CI took anti-inflammatories, Mobic and Celebrex, as well as Lortab (narcotic pain medication), which helped his pain.  He had difficulty sitting or standing upright for long periods but did a little better lying flat.  He had occasional night pain and difficulty sleeping.  Physical examination showed he walked with an antalgic gait to the right.  He had a well healed incision over the lower lumbar spine with no signs of infection.  There was tenderness over the incision site.  Range of motion (ROM) was limited due to pain.  Flexion was to 40 degrees (normal 90) with limited lateral bends due to pain.  There was diminished sensation of the skin particularly in the L5 distribution with some burning and pain upon touch in the L4 distribution.  The 13 June commander’s statement noted the CI “had trouble walking and standing for long periods of time…for 2 years he looks as if he is getting no better.”

The 21 September 2005 NARSUM examination, 1 month prior to separation, noted the CI was unable to do any physical training test, marching, or carrying of any significant weight due to the pain in his lower back and right hip.  He was only able to walk and swim at his own pace and distance, and could lift up to 20 pounds but could not carry it any distance.  The examiner noted his conditions would significantly impact any civilian vocation he would pursue.  Physical examination showed the CI had an antalgic gait but he could do heel and toe walking.  He was tender from L3-S1 with no para-lumbar muscle spasms.  Seated straight leg raising (SLR) tests were negative, but supine right and left leg SLR at 75-90 degrees caused slight pain in the lower back.  Pain did not increase with dorsiflexion.  Knee and ankle jerks were equal bilaterally with no pathological reflexes.  ROM of the lower back showed flexion to 50 degrees on the first trial and 10 degrees on the next 2 trials.  Neurologic examination of the left lower extremity showed decreased light touch from just above the left knee and around and down the calf both medially and laterally, and along the top of the foot and on the sole of the foot.  X-rays of the lumbar spine showed post laminectomy with L-3, L-4, and L-5 decompression and spondylolisthesis (one bone slides over the bone below it) at L5-S1.  There were also significant degenerative changes at L5-S1.  Vertebral heights were well-maintained as was disc height.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain 10%, coded 5243 (intervertebral disc syndrome), citing thoracolumbar ROM limited by pain, with localized tenderness and no neurologic abnormality.  The VA rated the chronic low back pain 20%, analogously coded 5299-5243, based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 degrees.  

Two separate evaluations, the May 2005 C&P and the September 2005 NARSUM, showed limited ROM.  The NARSUM examination, 1 month prior to separation and therefore most proximate to separation, documented flexion to 50 degrees.  According to the General Rating Formula for Diseases and Injuries of the Spine, flexion greater than 30 degrees but not greater than 60 degrees meets criteria for a 20% rating.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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.  

The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Physical examinations (NARSUM and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  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 in this case 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.  

Chronic Pain, Right Hip.  According to STR and the MEB NARSUM, the CI injured his right hip during the aforementioned training exercise in January 2003.  Pain persisted in the right hip area, and in November 2004 neuroimaging showed a stress fracture.  He underwent emergency surgery in April 2005 on the right hip.  

At the 28 May 2005 VA C&P examination, 5 months before separation, the CI reported pain in his right groin, especially with weight bearing.  He had occasional night pain as well but the Celebrex and Lortab helped.  Physical examination showed ROM was limited in the right hip due to pain.  Flexion was to about 70 degrees (normal 125) and he had a 10 degree hip flexion contracture.  Internal rotation was to 5 degrees and external rotation was to 15 degrees, also with pain.  Muscle strength was 5/5.  He had a positive Stinchfield (test of intra-articular pathology) on the right.  Reflexes were normal.  He had no imbalance except for antalgia on the right side due to pain in his groin.  X-rays showed bone death with degenerative joint disease on the right hip, and the fracture of the femoral neck appeared to be healed; however, there was some collapse at the superolateral portion of the femoral head due to aseptic necrosis.  

The 21 September 2005 MEB NARSUM examination, 1 month prior to separation, noted complaints of constant pain in his right hip at 8-9/10.  He was taking Percocet and Mobic daily for pain.  The orthopedic surgeon apparently felt he had collapse of the right femoral neck and aseptic necrosis (death of tissue) had developed.  Surgery included hip nailing, a temporary repair, and the CI was told he would eventually require hip replacement.  His injury would significantly impact any civilian vocation he would pursue.  Physical examination showed an antalgic gait.  SLR on the right aggravated pain in the right hip.  Weber’s sign (leg length dissymmetry) was positive in the right hip.  Pain rating for the right hip was marked/constant.  ROM of the right hip showed average flexion of 67 degrees and extension 12 degrees (normal 20).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic hip pain 10%, analogously coded 5099-5003 (arthritis, degenerative), citing the US Army Physical Disability Agency pain policy.  The VA rated the chronic hip pain 10%, coded 5010 (arthritis, due to trauma, rated as arthritis, degenerative), based on the C&P examination, citing painful or limited motion of a major joint.

Using information in the treatment record, the panel determined that the CI’s right hip was essentially non compensable based on the VASRD §4.71a codes for loss of hip/thigh motion (5250 through 5253).  However; there was fracture, non-union, or malunion of the femur to support consideration under the respective codes for hip impairment related to long bone conditions (5255, 5262.)  There was surgical correction with placement of screws and the stress fracture had supposedly healed, but right hip pain was recurring and limiting.  Both the NARSUM and the C&P examination documented an antalgic gait due to pain in the right groin.  The NARSUM examination documented that the pain rating of the right hip was marked and constant.  The orthopedic surgeon advised the surgical repair performed was temporary and the CI would eventually require hip replacement.  There was x-ray evidence of some collapse of the femoral head (suggesting malunion/non-union) due to aseptic necrosis of the femoral head.  The panel agreed that there was a moderate level of disability under the 5255 code and a disability separation rating of 20% was warranted for the right hip condition.  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 pain right hip condition, coded 5255 (moderate hip disability).  

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 chronic right hip pain condition, the panel recommends a disability rating of 20%, coded 5255 IAW VASRD §4.71a.  In the matter of the contended left leg radiculopathy condition, the panel recommends no change from the PEB determination as not unfitting.  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 Back Pain	5243	20%	
Chronic Pain, Right Hip	5255	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170303, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007237, 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