RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01863
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Infantryman, medically separated for “chronic low back pain with intermittent lower extremity pain and sensory loss,” with a disability rating of 10%.  

CI CONTENTION:  “The rated percentage for the conditions do not reflect the severity of their impact on my daily life.”  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 - 20041108	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain… with Intermittent Lower Extremity Pain and Sensory Loss	5237	10%	No VA Examination Proximate to Separation in Evidence	
Scheuermann's Kyphosis	Not Unfitting		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back pain with intermittent lower extremity pain and sensory loss condition began in May 2003 after performing physical training.  Radiographic studies from January 2004 showed a right-sided small T12-L1 herniated disc indenting the thecal sac and a small central disc herniation at L5-S1 associated with degenerative intervertebral disc phenomenon.  There was no surgical indication.  
During the 12 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported his back injury in 2003.  Physical examination showed lumbosacral spine tenderness.  The 26 August 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of low back pain with a stabbing sensation in the midline region at the lumbosacral junction.  He also complained of occasional muscle spasms.  He denied any radiation, except an occasional twitching in his left lower extremity when the left leg was extended and occasionally some bilateral numbness in his lower extremities.  The CI rated the pain as a 4-6/10.  The examiner noted the CI “ha[d] a history of Scheuermann's thoracic kyphosis.”  Physical examination showed a normal gait.  There was tenderness and muscle spasm present.  Range of motion (ROM) was “within normal limits,” however, actual measurements were not noted.  The CI was noted to have “full ROM of bilateral lower extremities.”  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  Strength was normal (5/5) in bilateral upper and lower extremities with normal tone and no atrophy.  Sensation was decreased to light touch in the dorsum of the left foot, otherwise no deficits.  Although there was a hand written note on the typed NARSUM indicating “EMG/NCS displays L(eft) lumbosacral radiculopathy,” the signed electrodiagnostic studies on 24 September 2004 were normal, and the physician specified there was no EDX (electrodiagnostic) evidence to support a left lower extremity radiculopathy.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain with intermittent lower extremity pain and sensory loss condition 10%, coded 5237 (lumbosacral strain), citing muscle spasm, no electrodiagnostic evidence to support a diagnosis of radiculopathy, and full ROM.  Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of tenderness and spasm.  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 noted that the PEB considered radiculopathy in its adjudication and rendered a de facto “not unfitting” determination by explicitly addressing the MEB’s submission of left lower extremity radiculopathy within the disability description of the unfitting low back condition, and the CI contended this condition.  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 left lower extremity peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular symptoms of occasional twitching and occasional numbness in his left leg documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  Additionally, the electro-diagnostic studies showed no evidence of neuropathy or radiculopathy.  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 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.  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.  

Contended PEB Condition:  Scheuremann's Kyphosis.  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 judged to fail retention standards.  However, Scheuremann's Kyphosis is a back condition with a static abnormal spinal contour (similar to scoliosis).  The CI did not have any respiratory symptoms or other non-back impairments due to the condition.  Any impairment from the Scheuremann's Kyphosis was therefore properly considered under the rating for the above unfitting low back condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  After due deliberation, the panel 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.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left lower extremity radiculopathy condition, the panel agrees it cannot recommend it for additional disability rating.  In the matter of the contended Scheuremann's kyphosis 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.  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 20170205, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180011263, 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