RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01851
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Indirect Fire Infantryman, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “My medical issues made me medically disabled for duty and 100% totally unemployable.”  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 - 20070125	VARD - 20071002	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Degenerative Disc Disease, Status Post, Right-Sided L4-5 Hemilaminectomy, Medial Facetectomy and Foraminotomy with Radiculopathy	5243-5237	20%	20070411	
			Radiculopathy Left Foot 	8521	10%	20070411	
Obstructive Sleep Apnea (OSA)	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070411	
Left Hydrocele, S/P Surgical Repair	Not Unfitting	Residuals, Status Post Bilateral Vasectomies, Left Hydrocelectomy and Left Hemiscrotal Exploration	7599-7523	0%	20070426	
Generalized Anxiety Disorder	Not Unfitting	Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Pain Disorder Secondary to General Medical Condition	9440	10%	20070423	
Mild PTSD	Not Unfitting					
Mild Depressive Disorder	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right-sided L4-5 hemilaminectomy, medial facetectomy and foraminotomy in March 2006, followed by a second L4-5 foraminotomy in September 2006, for lumbar stenosis and right-sided lumbar radiculopathy.  

At the 25 October 2006 MEB NARSUM examination, 1 month after the second surgery and 4 months prior to separation, the CI reported that he was unable to perform his military duties due to pain and profile restrictions, which prohibited lifting more than 10 pounds, wearing a Kevlar helmet or load-bearing equipment, running or physical fitness testing.  The provider did not perform a physical examination but referred to the MEB examination, which was completed prior to the second surgery and provided little information of value relative to the CI’s condition at time of separation.  No other physical examinations were conducted after the second surgery and prior to separation.  

At the 11 April 2007 VA Compensation and Pension (C&P) orthopedic examination, 2 months after separation, the CI reported LBP with radiation down to the right toes, lasting 30-45 minutes when occurring, and at a severity of 1-7/10.  He was taking Vicodin and ibuprofen twice daily about 4 days a week, and he denied flare-ups.  Physical examination revealed a normal gait and posture and no spasm, but tenderness over the scar.  Thoracolumbar range of motion (ROM) showed flexion of 40 degrees (normal 90) and combined ROM of 145 degrees (normal 240).  Straight leg raising was negative with the CI sitting, and positive on the right (negative on the left) when he was recumbent.  The examiner reported weakness with dorsiflexion of the right great toe.  A C&P addendum, on the same day, reported subjective complaints of right foot numbness below the mid-calf, but pinprick testing showed loss only in the left lateral foot.  The CI had LBP that extended into his buttocks, but reported no radicular leg pain at the time.  Physical examination showed a normal gait, and the provider documented normal ROM with some limitation of flexion with spasm that eventually made full ROM; no measurements were provided.  Straight leg raising was negative bilaterally, all muscle groups were 5/5 with no atrophy, and calves and thighs were symmetrical.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing pain with movements and right paraspinal spasms.  The VA rated the back condition 20%, dual coded 5243-5237 (intervertebral disc syndrome-lumbosacral strain), based on the C&P examination, citing limitation of motion.  Members agreed that 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 C&P examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that 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 low back condition, coded 5243.  

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The MEB specifically identified lumbar radiculopathy, the PEB considered radiculopathy in its adjudication, and the CI contended this condition, and therefore it is in the panel’s scope of review.  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 or sensory loss which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness or sensory deficit 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.  

Contended PEB Conditions:  OSA; Left Hydrocele, S/P Surgical Repair; Generalized Anxiety Disorder; Mild PTSD; Mild Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement.  Only the OSA was judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  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 chronic low back pain condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended OSA; left hydrocele, s/p surgical repair; generalized anxiety disorder; mild PTSD; and mild depressive disorder, 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.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170306, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010281, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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.
 
Sincerely,					      
Enclosure