RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01306
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050414

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Combat Engineer, medically separated for “chronic radiating low back pain” and “chronic right sciatic neuralgia,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  Back injury impacted the right L5 nerve root and left leg nerve.  Nerve damage was not considered.  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 FPEB -20050105	VARD - 20060302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain…	5241	10%	Degenerative Osteoarthritis and Disk Disease…	5242-5241	20%	20051014	
Chronic R Sciatic Neuralgia…	5241-8720	10%	Right Sciatic Radiculopathy…	8526	10%	20051014	
Left Leg Nerve Damage	Not Unfitting	Neuropathy, LLE…	8526	10%	20051014	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI noticed some sensory changes involving his left leg in 1999.  An evaluation was begun, including an MRI which showed degenerative disc disease (DDD) with bulging disc.  The left leg symptoms were not associated with MRI findings and are discussed below.  Despite physical therapy, traction, and multiple epidural treatments, the LBP progressed.  In November 2002, the CI underwent a laminectomy at L4 and L5 as well as an L4-5 discectomy.  His LBP persisted at higher activity levels.  An MRI showed recurrent disc herniation as well as the development of scar tissue.  The CI had surgical revision on 3 November 2003.  Following the second surgery, his symptoms persisted.  A neurosurgical note dated 9 April 2004, 12 months prior to separation, recorded right sided radicular discomfort.  The examiner wrote that the CI “has had no problems affecting his left lower extremity.”  Provocative testing for nerve root irritation was positive on the right.  The range of motion (ROM) of the back showed, in degrees, flexion of 85 (normal 90), extension of 10 (normal 30), and lateral flexion to 10 (normal 30).  Rotation was not recorded.  He was referred for physical therapy.  The pain persisted despite this, medications, and additional injections.  The CI was then referred for MEB.  

During the 29 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported ongoing LBP.  The physical examination showed tenderness in the lumbar region.  Provocative testing for nerve root irritation was positive on the right side.  The neurological examination was checked normal.  In physical therapy 1 month later, formal ROM testing showed flexion to 80 degrees and a combined ROM of 220 degrees (normal 240).  The 17 September 2004 MEB NARSUM examination, 7 months prior to separation, noted that the CI was unable to participate in any significant physical activity due to persistent pain.  He denied incontinence.  Physical examination showed limited ROM of the back.  Pain and light touch were impaired over the dorsum of the right foot.  Reflexes were intact.  No comment was made regarding strength or gait.  Provocative testing for nerve root irritation was positive on the right.  

At the 14 October 2005 VA Compensation and Pension (C&P) spine examination, 6 months after separation, the CI reported continuous pain from the right buttock radiating to the ankle.  He also noted stiffness in the back.  He did not use an assistive device and denied incapacitation.  On physical examination, the gait, strength, muscle bulk, and reflexes were normal.  Sensation was diminished over the left and right lateral thighs.  ROM showed flexion of 65 degrees and a combined ROM of 190 degrees, with painful motion noted.  No comment was made on further loss with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing limitation of motion.  The VA rated the low back condition 20%, coded 5242-5241 (degenerative arthritis of the spine - spinal fusion), based on the C&P examination, citing flexion limited to 50 degrees after repetition.  The panel observed that there was no record of repetitive motion testing on the C&P examination.  Rather, the 50 degrees of flexion represented the onset of LBP rather than a limitation and the 20% rating adjudicated by the VA was not supported by the evidence.  The limitation of motion evident on all measurements in evidence within 12 months of separation supported a 10% rating, as did painful motion.  There was no abnormal gait, posture, or incapacitation to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Chronic Right Sciatic Neuralgia.  The examinations above record the pertinent information regarding the neurological dysfunction.  In addition, electrodiagnostic (EDX) studies on 28 December 2004 showed evidence of chronic denervation with re-innervation of the right tibialis anterior muscle (extends the toes and helps lift the ankle upward).  The sensory nerves were normal.  No abnormalities were present on the left side.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic right sciatic neuralgia 10%, coded 5241-8720 (degenerative arthritis of the spine-sciatic nerve neuralgia), noting scar tissue surrounding the L-5 nerve root.  The panel observed that this was on an MRI accomplished prior to the second back surgery.  The VA also rated the right sciatic radiculopathy and neuropathy 10%, coded 8526 (paralysis of the femoral nerve), based on the C&P examination, citing sensory loss.  The panel observed that the sensory changes were inconsistent between examinations and that no sensory deficit was present on the EDX studies proximate to separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the chronic right sciatic neuralgia.  

Contended PEB Condition: Left Leg Nerve Damage.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was profiled and nerve damage (not further specified) was implicated in the commander’s statement.  It was judged to fail retention standards by the MEB.  A neurosurgery note dated 26 November 2003 recorded that the CI had some pain in the lateral aspect of the left thigh and numbness of both feet.  However, the neurosurgical note 12 months prior to separation indicated no problems with the left leg.  The DD Form 2808 recorded a normal neurological examination.  The NARSUM examiner only recorded sensory changes of the right foot.  The EDX studies in December 2004 were negative for pathology on the left side.  The VA C&P did note sensory loss, but over an 11x31 cm area of the left anterior medio-lateral thigh.  This corresponds to an L2-3 nerve root distribution which was not the nerve root involved.  There was no performance-based evidence from the record that the left leg nerve damage condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel majority concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  The minority voter contended that the condition should be unfitting due to the facts that it was profiled, possibly implicated by the commander, and judged to fail retention standards by the MEB.  However, the minority voter also thought that it would not be compensable (would be rated 0%) and no rating advantage would be afforded to the CI.  

BOARD FINDINGS:  In the matter of the chronic low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the chronic right sciatic neuralgia and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left leg nerve damage condition, the panel majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent recommended the condition be found unfit and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170304, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180007414, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure