RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01157
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Cook, medically separated for “degenerative disc disease (DDD)” with a disability rating of 0%.  

CI CONTENTION:  The CI requested review of his back with right leg pain, as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20070626	VARD - 20080227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD with Bulges, without Motor Neurologic Deficits	5299-5242	0%	DDD, Low Back Residuals	5010-5237	10%	20070719	
			Paresthesia, Right Leg Secondary to Back	8520	NSC	20070719	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

DDD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in the summer of 2003 after lifting heavy boxes while deployed.  X-rays and MRI in 2005 were reported as negative.  A CT scan in May 2006 showed L3-4 and L4-5 broad disk bulges with some foraminal stenosis.  An MRI in November 2006 revealed no evidence of focal herniation or significant compromise to the central canal or exiting foramina.  Orthopedic evaluation indicated nonsurgical back pain.  

At the time of the physical therapy (PT) clinic appointment on 20 April 2007, 4 months prior to separation, the CI reported right sided low back pain (7/10) with numbness and tingling down the right lower extremity.  On examination there was no localized tenderness, muscle spasm, or guarding.  His gait was slow and guarded and he was slow to rise from a seated position.  He had thoracic kyphosis, but no scoliosis or abnormal spinal contour was observed.  Thoracolumbar range of motion (ROM) after repetition showed flexion of 55 degrees (normal 90) and combined ROM of 160 degrees (normal 240).  All measurements except for rotation were taken with a bubble inclinometer rather than the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  Painful motion was noted.  Physician examination the same day noted tenderness and an equivocal right straight leg raise (SLR) for radicular signs.  

The 17 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain that at best was 6/10 and at worst was 9/10.  Physical examination showed a normal gait with normal lower extremity strength, reflex, and sensation testing.  There was a negative SLR testing bilaterally and there was no lumbar region tenderness or spasm.  ROM testing referenced the PT clinic appointment on 20 April 2007, noted above.  

At the 19 July 2007 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported constant low back pain (7/10) with numbness extending to the right leg and toes, 3 days of the week, that lasted all day.  Physical examination showed a normal gait.  Lumbar spine ROM after repetition showed flexion of 90 degrees and combined ROM of 240 degrees.  Painful motion was noted.  SLR testing was negative.  There was good motor strength in the lower extremities with no atrophy and no deficits in reflexes or sensation.  The examiner stated, “paresthesia to right leg secondary to low back condition not found on this exam.”  

Electrodiagnostic (EMG) studies on 19 November 2007, 3 months after separation, revealed a normal study.  There was no peripheral neuropathy in the right leg and no EMG evidence of a right lumbosacral nerve root lesion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, analogously coded 5242 (degenerative arthritis of the spine), citing ROM limited by pain, no consistent finding of tenderness or spasm, and no motor neurologic deficits (with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion).  The VA rated the low back condition 10%, dual coded 5010-5237 (arthritis, due to trauma-lumbosacral strain), based on the C&P examination, citing painful or limited motion of a major joint.  

The panel noted the 20 April 2007 PT examination, 4 months prior to separation, provided ROM values for the thoracolumbar spine performed using an inclinometer, which was not the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  Therefore, the panel placed greater probative value on the more proximate VA C&P examination that showed full ROM with evidence of painful motion.  Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion.  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 intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The panel adjudged that the PEB considered radiculopathy in its adjudication and rendered a de facto “not unfitting” determination by indicating no motor neurologic deficits, and the CI contended this condition (right leg pain).  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There was no associated radiculopathy for separate peripheral nerve rating.  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.  The panel therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back condition, coded 5299-5242.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended right leg (radiculopathy) condition, the panel agrees it cannot recommend it for additional disability rating.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease with Bulges, without Motor Neurologic Deficits	5299-5242	10%	

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Dear XXXXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

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