RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-01579
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Common Ground Station Operator, medically separated for “L5-S1 lumbar fusion x 2” with a 20% disability rating.  

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 - 20070404	VARD - 20080701	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Lumbar Fusion Repeated  Two Times 	5241	20%	Residuals, Degenerative Disc Disease (DDD), Status Post (S/P) Trans-foraminal Lumbar Interbody Fusion L5-S1, with Stimulator Placement	5241	20%	20080125	
LLE Radiculopathy	Not Unfitting	LLE Radiculopathy	8599-8520	10%	20080125	
Anxiety Disorder, NOS	Not Unfitting	Mood Disorder	9435	50%	20080126	
Exercise-Induced Asthma	Not Unfitting	Asthma	6602	30%	20080125	
Migraine Headaches	Not Unfitting	Migraines	8100	10%	20080125	
Hypertension	Not Unfitting	Hypertension	7101	NSC	20080125	
Hypercholesterolemia	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80% 	

ANALYSIS SUMMARY:  

L5-S1 Lumbar Fusion, Repeated Two Times.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in August 2003 after falling.  Due to persistent pain, a lumbar fusion of L5-S1 was performed on 3 August 2004.  This was complicated by non-union and revised on 26 October 2005.  Following surgery, electrodiagnostic testing on 2 June 2006 showed a chronic right L5 radiculopathy.  A steroid injection on 6 June 2006 provided partial relief.  X-rays on 20 June 2006 showed fusion and good alignment; however, his pain persisted after initial improvement and he was seen in pain management on 17 August 2006 and given a second steroid injection.  On examination, it was noted his neurological evaluation and gait were normal and the spine was well aligned.  The range of motion (ROM) was normal.  Due to persistent pain, the CI was entered into the MEB process.  

During the 6 November 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported chronic LBP which radiated to his left lower extremity (LLE).  On examination, the ROM was markedly reduced and provocative testing for nerve root irritation positive bilaterally.  The CI was then seen in orthopedics on 20 December 2006.  The gait and neurological examination were normal.  Flexion was to the mid-shin (over 60 degrees), with reduced extension.  Lateral bending was normal.  Rotation was not recorded.  X-rays showed adequate healing.  On 8 January 2007 a spinal cord stimulator (to reduce pain) was placed with revision 4 days later.  The 5 February 2007 MEB NARSUM examination, 7 months prior to separation, recorded complaints of ongoing LBP with LLE numbness (whole leg).  The pain was exacerbated by staying in one position and by activity.  Three (of five) signs of non-organic pain were present.  On physical examination, flexion was 75 degrees (normal 90) and the combined ROM was 205 (normal 240).  Motion was limited by pain.  The gait was slow but normal.  Tone, sensation, and strength were normal.  The ankle reflexes were reduced.  Atrophy was absent.  

In a follow-up appointment in the pain clinic on 28 February 2007, the CI reported no improvement in his symptoms.  No examination was in evidence.  Per a subsequent note (22 May 2007 in urology), the CI was in a motorcycle accident in March 2007.  The panel found no specific notes for this event and it is not otherwise noted in the records available for review.  In flight medicine on 4 May 2007, it was reported that the CI continued to work half days and was in the PEB process.  The spinal stimulator was adjusted on 25 May 2007 (per a 6 June 2007 urology note).  A review of the record does not show that the CI was placed on quarters for the back condition (other than after procedures) in the final 12 months of service.  The CI was then evaluated in urology for a possible neurogenic bladder.  An MRI showed a moderate sized post-void residual (incomplete emptying of the bladder).  On 11 October 2007, 2 months after separation, the urologist confirmed sphincter dysfunction and recommended that the CI avoid constipation (to reduce pressure on the bladder, reducing leakage, and increasing emptying).  

At the 25 January 2008 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported the use of a lidocaine patch and spinal stimulator with partial pain relief.  He reported flares lasting 2 hours 3-4 times a day in which he was bedridden with pain.  Walking was limited to 150-200 yards.  He did not use a back brace, but did use a walker on occasion.  He also reported multiple episodes of incapacitation lasting 2-3 days on a monthly basis.  He endorsed urinary frequency, but denied incontinence.  He also reported a partial paralysis of the common peroneal nerve and left foot radiculopathy/neuropathy with an intermittent left foot drop.  On examination, he had a mildly antalgic gait without evidence of foot drop.  No assistive device or brace was in use.  Spinal curvature was normal.  He had no difficulty changing positions from standing to seated and then lying down as well as the reverse.  There was no evidence of muscle atrophy and his strength was normal.  He was able to stand on his heels and toes.  Reflexes were normal.  Sensation was reduced on the left in the L2, 3, 4, and 5 dermatomes.  Tenderness was present over the spine but not the paraspinal muscles.  Bilateral spasm was present.  Motion was limited by pain with flexion at 40 degrees and the combined ROM 140 degrees.  No objective evidence of painful motion was present.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the L5-S1 fusion condition 20%, coded 5241 (spinal fusion), noting that there was no motor neurological dysfunction and that the ROM was limited by pain.  The VA also rated the back condition 20%, coded 5241, based on the C&P examination, citing limitation of forward flexion.  The VA also rated a LLE radiculopathy at 10%, coded 8599-8520 (analogous to mild paralysis of the sciatic nerve).  The ROM on the MEB NARSUM and in orthopedics prior to it supported a 10% rating.  The VA examination supported a 20% rating which was adjudicated by both the VA and PEB.  The CI reported incapacitation, but this was not supported by the STR.  No route to a higher rating that the 20% adjudicated was supported by the evidence.  The CI also contended for a radiculopathy condition.  It was noted to fail retention standards and was included in the profile, but adjudicated to be not unfitting by the PEB.  The panel observed that while the C&P examination noted sensory loss in multiple dermatomes on the left (more than expected from the pathology), multiple previous neurological examinations showed normal sensation and strength.  There is not a preponderance of evidence to overcome the PEB not unfitting adjudication for a radiculopathy condition at separation.  After due deliberation, considering all of 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 back condition.  

Contended PEB Conditions:  Anxiety Disorder, NOS; Exercise-Induced Asthma; Migraine Headaches; Hypertension; Hypercholesterolemia.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The CI was issued a P2/L3/S1 profile.  Only the back condition was implicated in the commander’s statement.  All these conditions were judged to meet retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  The panel noted that hypercholesterolemia is a laboratory finding and not a ratable physical disability.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the L5-S1 fusion condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended radiculopathy; anxiety disorder, NOS; exercise-induced asthma; migraine headaches; hypertension; and hypercholesterolemia conditions, the panel recommends no change from the PEB determinations as not unfitting.  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 20170225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180005239, 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