RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01989
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080726

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “low back pain” with a disability rating of 20%.  

CI CONTENTION:  His back condition continues to worsen and negatively impact daily activities.  He also requested review of 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 - 20080415	VARD - 20081002	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	20%	Low Back Strain	5243	40%	20080721	
Urinary Retention	Not Unfitting	Urinary Tract Infection	7512	0%	20080721	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in September 2006 while carrying a heavy pack.  An MRI on 3 October 2006 demonstrated minimal concentric bulging of the intervertebral disc at L4/L5, with no central or lateral spinal canal stenosis.  X-rays of the lumbar spine on 4 October 2006 were unremarkable.  At an orthopedic clinic visit on 23 February 2007 the CI indicated he had more pain on the right side with occasional muscle twitching and some sharp pain.  He denied any tingling or numbness in the feet or loss of bowel control.  He was in process of urology workup for inability to void (see below), but he had no loss of control of his bladder.  On examination he had a normal gait and some tenderness in the midline over the lower lumbar spine with some pain of the right paraspinal muscle and lesser so over the sacroiliac joints.  Strength and sensation were intact.  An MRI dated 26 February 2007 demonstrated straightening of the lumbar lordosis with minimal degenerative changes, and moderate bilateral L4-5, and mild bilateral L3-4, neural foraminal narrowing.  On 8 March 2007 the CI received a lumbar epidural steroid injection for the low back pain and a muscle relaxer. He had additional epidural steroid injections in April and May 2007.  Because of persistent lower back pain, the CI underwent bilateral branch blocks of the lumbar facets on 4 June 2007.  At a physical therapy visit on 7 June 2007 forward flexion was 65 degrees and the combined range of motion (ROM) was 180 degrees with limitation of motion due to pain.  There was localized tenderness and muscle spasm or guarding with an abnormal gait.  Bilateral branch blocks of the lumbar facets were again performed on 13 June 2007.  On 23 August 2007 the CI had radiofrequency denervation of the left L3-4, L4-5, and L5-S1 medial branches of the lumbar facets.  

The 25 August 2007 MEB NARSUM examination, 11 months prior to separation, noted complaints of lumbar back pain of 5-6/10 at rest and up to 10/10 with moving or bending.  Thoracolumbar ROM measurements performed by a physical therapist recorded active flexion to 65 degrees (normal 90) and combined ROM of 180 degrees (normal 240) with pain after repetitive motion.  The examiner noted localized tenderness and abnormal gait due to muscle spasm or guarding, but no spinal contour abnormality.  At the time of the internal medicine clinic appointment on 10 March 2008, 4 months prior to separation, the examiner recorded active “flexion/extension 70 degrees.”  Additional ROM measurements included right lateral flexion 15 degrees (normal 30), left lateral flexion 15 degrees (normal 30), right rotation 15 degrees (normal 30), left rotation 15 degrees (normal 30).  However, an extension measurement was not recorded in a standard manner.  Therefore, a combined ROM could not be calculated.  The examiner noted no scoliosis, kyphosis, or abnormality in the thoracic spine, and the CI’s gait was normal.  At a VA ambulatory care visit on 11 July 2008 the CI indicated he was taking oxycodone, a narcotic, for the prior month with good relief, and the prescription for oxycodone was renewed;  however, at a follow-up on 18 July 2008 visit he indicated he had been using the oxycodone three times a day and ran out of medication.  The examiner noted no opioids should be given, and instead the CI was to continue gabapentin (for nerve pain) and topical capsaicin cream (for pain relief) and lidocaine gel (a topical anesthetic) for pain relief.  

At the 21 July 2008 VA Compensation and Pension (C&P) examination, 5 days before separation, the CI reported constant sharp, shooting low back pain, 7-8/10 in severity, radiating down to his left thigh and knee.  He reported taking oxycodone four times a day as needed and a muscle relaxer (baclofen).  No flare ups were reported, although the CI indicated he had 20-30 incapacitating episodes of low back pain for 2 days.  Physical examination showed flexion of 20 degrees and combined ROM of 105 degrees after repetition.  The examiner noted painful motion and loss of motion due to pain for flexion recorded as 0-15 degrees.  Gait was normal and there was no abnormal spinal curvature.  At the 30 April 2009 VA C&P examination, 9 months after separation, the examiner noted the CI appeared to be making a conscious effort to convey his discomfort.  Flexion was 20 degrees and combined ROM was 75 degrees with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5237 (lumbosacral strain), citing ROM limited to 65 degrees with an additional 10 degrees of flexion and 5 degrees of extension lost upon repetitive motions.  The VA rated the low back condition 40%, coded 5243 (intervertebral disc syndrome), based on the first C&P examination, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  

The ROM measurements reported by the VA examiner, 5 days prior to separation, were significantly worse than those reported at the internal medicine examination 4 months prior to separation and the MEB NARSUM examination 11 months before separation.  The VA examination was more proximate to separation than any other examination, thereby having a higher probative value.  While there was no evidence in the STR of an accident, injury, or surgery, the CI no longer had regular treatments with epidural steroid injections, branch blocks, or radiofrequency ablation at the time of the VA examination.  He had radiofrequency denervation of the left L3-4, L4-5, and L5-S1 medial branches of the lumbar facets 1 day prior to the MEB NARSUM examination, which mitigated some of his pain and permitted him to flex more than he would have without pain management treatment.  

At the internal medicine examination performed 3 months prior to the VA examination, the measurement was recorded as flexion/extension 70 degrees.  It was not clear how the 70 degrees is to be interpreted in the absence of a separate extension measurement, although one panel member felt that measurement was more reflective of the anticipated severity based on the clinical pathology.  Three days before the VA C&P examination the CI was advised that no more opioids were to be used.  Therefore, at the time of the VA examination, in the absence of oxycodone (which he had been taking multiple times a day), the CI’s ROM was likely more limited than prior examinations due to unsuppressed pain.  Further evidence comes from the MRI findings in October 2006 of minimal concentric bulging of the intervertebral disc at L4/L5 without any central or lateral spinal canal stenosis, which progressively worsened by February 2007 to straightening of the lumbar lordosis with minimal degenerative changes and moderate bilateral L4-5, and mild bilateral L3-4, neural foraminal narrowing.  

At the C&P examination 9 months after separation the CI’s flexion was 20 degrees and the combined ROM was 75 degrees.  Based on flexion of 20 degrees (which decreased to 15 degrees with repetition) at the initial VA examination, and the 20 degrees flexion again recorded 9 months after separation, a 40% rating is unequivocally warranted.  That rating is supported by the objective MRI imaging that demonstrated worsening of foraminal narrowing at L3-4, and L4-5 compared to MRI findings only 5 months earlier.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the low back condition, coded 5237.  

Contended PEB Condition:  Urinary Retention.  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 not profiled, implicated in the commander’s statement, or judged to fail retention standards.  In late September 2006 the CI had an episode of urinary retention.  He had no radiculopathy down his leg, and an MRI revealed no evidence of the cuada equina syndrome.  In October 2006 a voiding cystourethrogram showed a bladder capacity of 700 cc without abnormal anatomic findings.  The CI did have adequate sensation and felt that his bladder was full.  A cystoscopy in October 2006 was essentially normal except for bladder mucosa patchy hemorrhage felt to be cystitis secondary to catheter drainage.  He was to continue self-catheterization.  In late October and November 2006 the CI reported he was able to urinate with straining.  Urodynamic study results supported the assessment of a neurogenic bladder.  Manometric studies on 14 May 2007 revealed the maximum bladder flow rate was 14.1 ml/sec and the average flow rate was 7.2 ml/second.  The CI stated he was able to void on his own and had stopped clean intermittent catheterization (CIC) 1 month earlier.  The examiner indicated there was no need to continue the CIC.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel majority recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  In the matter of the contended urinary retention 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.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5237	40%	

AR20180014722, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) to re-characterize your separation as a disability retirement with the
combined disability rating of 40% effective the date of your medical separation for disability with
severance pay. Enclosed is a copy of the Board’s recommendation and record of proceedings
for your information.
The re-characterization of your separation as a disability retirement will result in an
adjustment to your pay providing retirement pay from the date of your original medical
separation minus the amount of severance pay you were previously paid at separation.
The accepted DoD PDBR recommendation has been forwarded to the Army Physical
Disability Agency for required correction of records and then to the U.S. Defense Finance and
Accounting Service to make the necessary adjustment to your pay and allowances. These
agencies will provide you with official notification by mail as soon as the directed corrections
have been made and will provide information on your retirement benefits. Due to the large
number of cases in process, please be advised that it may be several months before you
receive notification that the corrections are completed and pay adjusted. Inquiry concerning
your correction of records should be addressed to the U.S. Army Physical Disability Agency,
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557.
A copy of this decision has also been provided to the Department of Veterans Affairs.