[AR Number], XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

	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. 

A copy of this decision has been provided to the counsel you listed on your application, XXXXXXXXXX, Veterans Benefits Counselor, 1300 West University Avenue, Flagstaff, AZ 86001.

Sincerely,	

Enclosure

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-02161
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantryman, medically separated for “chronic low back pain [LBP]” and “chronic right lower extremity [RLE] pain,” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  “VA has determined a higher disability rating as opposed to the rating I received prior to being discharged from the Army.”  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 - 20080528	VARD - 20090311	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP…
	5241
	10%
	Remote Herniation Nucleus Pulposus, L5-S1 Status Post
Fusion with Chronic Lumbar Spine Degenerative Changes and Left Lower Extremity Radiculopathy	8520-5243	40%	20090218	
Chronic RLE Pain…	8799-8720	10%	Right Lumbar Radiculopathy	8520	20%	20090218	
Post Traumatic Stress Disorder (PTSD)	Not Unfitting	PTSD	9411	30%	20080910	
History of Mild Traumatic Brain Injury (TBI)	Not Unfitting	TBI	8045	10%	20090217	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in October 2001 after a training accident.  He was treated with an epidural, which completely relieved symptoms until recurrence during a deployment secondary to multiple IED explosions.  In January 2006, neuroimaging showed central L5-S1 disc degeneration with a mildly effaced left S1 nerve root.  An L5-S1 discogram in March 2006 showed a fissured and ruptured disc with symptomatic reproduction at S1.  The CI underwent an L5-S1 discectomy and fusion in April 2006, but LBP persisted.  

During the 21 December 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the examiner documented flexion to 85 degrees (normal 90) and extension to 30 degrees (normal), and no changes in range of motion (ROM) with repetition. There was no paraspinal muscle tenderness, and straight leg raise (SLR) testing was negative bilaterally.  In February 2008, the commander’s statement noted the CI could work up to 40 hours per week, but not in his military specialty.  The April 2008 commander’s statement indicated he could not wear equipment required for safety in combat.  

The 22 April 2008 MEB NARSUM examination, 4 months before separation, noted complaints of worsening pain, especially in the back of the right leg.  The CI could not run, walk distances, ruck march or tolerate wearing body armor.  During a family practice visit on 20 May 2008, he rated daily back pain at 6/10, and the provider noted normal gait, stance, balance and movement of all extremities.  There was lumbar paraspinal tenderness but no thoracolumbar spine abnormalities.  In May 2008, his case manager documented that he lived independently, accomplished instrumental activities of daily living, exercised regularly, and took no medication.   

At the 19 August 2008 VA Compensation and Pension (C&P) general examination, 4 days after separation, the CI reported constant, moderate to severe LBP, with fatigability and lack of endurance, and that he could only stand for 30 minutes or walk 500 meters.  He was not receiving treatment for the pain and did not use an assistive walking device.  Flare-ups occurred with severe cold weather, but he only took an over-the-counter medicine for pain relief as needed.  The CI had not been employed since discharge, but lived with his pastor and worked part-time painting the church in exchange for housing and meals.  He had no incapacitating episodes requiring bedrest per physician prescription in the past 12 months.  

Physical examination showed upright posture with an antalgic gait favoring the RLE.  There was point tenderness over the upper lumbar spinous processes, but not along the paraspinous muscles.  A slight loss of the lumbar lordosis was recorded, and SLR testing was negative bilaterally.  Active flexion was to 50 degrees, with a decrease to 40 degrees after three repetitions.  However, while the CI was getting dressed, the examiner noted he was able to flex to at least 70 degrees.  The remaining measured ROM, in degrees, showed extension to 28, right lateral flexion to 28 (normal 30), and left lateral flexion to 30, with pain noted at the end ranges.  Bilateral rotation was to 20 (normal 30), with the inability to continue beyond 20 due to stiffness, but not pain.  The ROM in all planes (except flexion) did not decrease after repetition.  The CI refused to accomplish passive motion testing after demonstrating significant guarding.  He was able to rise on both heels, but not on his right toes, and there were no abnormal shoe-wear pattern or calluses.  The examiner documented that the CI displayed poor effort during the evaluation.  While giveaway weakness was noted, the remainder of the motor examination revealed 5/5 strength in all lower extremity muscle groups.  Lumbar spine X-rays the same day showed 3 screws between L5 and S1 with straightening in the normal lumbar lordosis and mild disc space narrowing at L1-L2 and L2-L3, compatible with degenerative changes.  The 10 September 2008 C&P PTSD examination noted the CI was helping his pastor with painting and had a girlfriend with whom he was intimate.  

At the 18 February 2009 C&P spine examination, 6 months after separation, the CI reported LBP with prolonged standing or when in cold weather (but not during warmer months).  He had leg/foot numbness and weakness, but used no assistive devices, and was able to walk 1/4 mile.  He reported 6 incapacitating episodes during each winter of 2007-2009, and 2 recent flares with LBP and radiating pain from the right buttock to the calf, that required him to stay in bed 1-2 days.  While he experienced urine and stool dysfunction after surgery in 2006, he no longer had urinary incontinence, but experienced increased frequency and urgency with no leakage due to quick voiding.  Stool evacuation was signaled by buttock sweating and tingling, heralding involuntary evacuation within a minute, and occurring 2-3 times per day, usually right after a meal; fecal leakage was mild and occasional.  He also reported erectile dysfunction, with no viable penetrable erections or ejaculation post-surgery except with rare use of Viagra medication.  

Physical examination showed normal posture, but slow advance of the right leg into a sliding, foot dragging gait.  There was no evidence of abnormal spinal curvature, and thoracic sacrospinal muscles showed pain with motion and tenderness bilaterally, but no weakness.  The examiner noted that tenderness, spasm and guarding were not responsible for the abnormal gait, and there was no muscle atrophy.  Measured ROM showed flexion to 30 degrees and extension to 10 degrees, without objective evidence of painful motion and no pain or additional limitations following repetitive motion.  There was a positive SLR sign on the right at 10 degrees, but no relief with knee flexion at 9 degrees.  He also had the same pain with SLR positioning during dorsi and plantar flexion of the right foot.  Thigh diameter was 49 cm on the right compared to 51 cm on the left, and calf diameter was 39.5 cm on the right and 37.5 cm on the left; Waddell’s signs were negative.  The 27 August 2009 C&P PTSD examination noted the CI had recently purchased a Mustang which he planned to fix up and take on road trips to get away from others.  He also enjoyed “doing alot of work on the home he bought.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, coded 5241 (spinal fusion), citing spinal flexion to 85 degrees.  The VA rated the LBP and left lower extremity radiculopathy 40%, dual coded 8520-5243 (paralysis of sciatic nerve-intervertebral disc syndrome), based on the C&P examination, citing thoracolumbar forward flexion of 30 degrees.  Members noted the disparity between the MEB and 19 August 2008 C&P ROM measurements, which were most proximate to separation.  After deliberating over the probative value of the conflicting evaluations, the panel ultimately agreed that the MEB evidence carried the determinant probative value because there was no corroborating STR evidence after May 2008 regarding evaluation and treatment for LBP, or the degree of ROM limitation reflected by the C&P measurements.  The C&P examiner noted the CI was able to flex to at least 70 degrees as he was dressing and had put forth inadequate effort during the evaluation.  Additionally, he had not sought treatment for his back pain, did not require an assistive device, and was able to work part-time.  The MEB ROM evidence did not support a rating higher than the 10% adjudicated by the PEB.  There was no evidence for muscle spasm to support a 20% rating and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  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 LBP condition.  

Chronic RLE Pain.  According to the STR and MEB NARSUM, the CI’s RLE pain began after the 2001 back injury and was exacerbated during a deployment.  He had right leg pain and numbness with sneezing, and right and left leg radiculopathy was noted after the April 2006 surgery.  He also had a history of fracture of the right lower leg in childhood without any sequellae.  

The MEB examination revealed 5/5 strength in both lower extremities, and an electromyogram (EMG) on 4 February 2008 showed a chronic right S1 distribution radiculopathy and a mild right and minimal left L5 distribution radiculopathy.  The consulting neurologist recorded that the CI endorsed pain, but denied numbness, and reported that his left leg was “basically back to normal.”  Sexual potency as well as urinary and bowel control were good.  Physical examination showed normal muscle tone, strength, sensation and reflexes in the lower extremities.  The examiner opined that CI’s condition was stable.  The MEB NARSUM examination noted complaints of worsened pain in the back of the right leg, but improved weakness after surgery.  

There were no further treatment records regarding the RLE until the C&P general examination, when the CI reported right greater than left neurologic pain, with tightness and spasm which began in the right lower back and radiated to the posterior calf.  He also described a “loss of sensation to sharp sensation” over the entire lower right leg with mild weakness and occasional stiffness.  His sciatica was worse during cold weather and lasted up to a day, but without weakness, fatigue or functional loss; it was relieved by rest and a hot shower.  There was no current treatment, and he denied paresthesias or dysesthesias.  He no longer played any kind of sports or ran, and had standing and walking limitations.  He reported bowel incontinence once a week, but had no bladder problems.  He had erectile dysfunction, but was able to achieve penetration.  Neurologic examination showed impaired coordination with an inability to perform a heel-to-shin maneuver with the RLE on the left shin.  Bilateral lower extremity reflexes were normal, and in the RLE, the CI had decreased pinprick and vibration to the level of the hip from the toes, with normal position sense.  Motor examination revealed no atrophy and 4/5 strength of the right great toe and ankle in both dorsiflexion and plantar flexion.  The examiner opined that the CI “did give poor effort, and giveaway weakness was noted.”  The remaining lower muscle group findings showed bilateral, 5/5 strength with normal rectal tone and sensation.  

At the C&P spine examination, the CI reported leg and foot weakness, decreased motion, stiffness, spasm, RLE pain, and no sensation in the right foot.  The radiculopathy caused weakness, fatigue and pain in the lower extremity which decreased the amount of time he could work (paint) in half.  While there was a moderate to severe impact on some aspects of activities of daily living, he was able to attend to personal needs.  Physical examination showed normal posture but an antalgic gait with dragging of the right foot.  Motor examination showed 2/5 strength with hip, knee and great toe extension as well as and ankle dorsiflexion on the right, and 5/5 strength on the left; right ankle plantar flexion was 3/5 on the right and 5/5 on the left, with normal muscle tone and no atrophy.  Sensory examination of the RLE showed position sense was lost from toes to ankle, and vibration was lost up to “trace appearance right medial knee.”  Pinprick was decreased below the “right upper buttock and L1 in groin,” and no pinprick was perceived on either side of the genitalia.  Touch was perceived as reduced in the right thigh and not felt below the right knee.  Reflexes showed 1+ knee and ankle jerk on the right and 2+ on the left; other extremity reflexes were equal and normal.  Rectal examination showed rectal tone of 3+/4 and active contraction of 1/4; there was no bulbo-cavernous reflex with pinch of the glans penis.  The examiner noted that “the degree of weakness and sensory loss did not add up consistently” but opined that it was “a minor factor in the whole picture of post-operative deficits affecting motor, sensory, rectal and sexual function with obvious deficits.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the RLE pain 10%, analogously coded 8720 (sciatic nerve neuralgia), citing mild sciatic neuralgia.  The VA rated the right lumbar radiculopathy 20%, coded 8520 (sciatic nerve, paralysis of), based on the C&P examination, citing moderate, incomplete paralysis below the knee.  The NARSUM examination noted pain in the back of the right leg, but improved weakness, while the 19 August 2008 C&P examination noted an antalgic gait favoring the RLE.  The CI reported mild weakness, although the physical findings showed 5/5 strength with some loss of sharp sensation. The examiner noted poor effort by the CI during the evaluation and that he did not report pain severe enough to receive treatment or take medication.  Additionally, there was no evidence of muscle atrophy or tingling, stabbing or burning pain to achieve a higher rating under codes 8520 or 8620.  Members concluded there was no evidence to achieve the higher 20% level of moderate disability under code 8799-8720.  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 RLE condition.  

Contended PEB Conditions:  PTSD and TBI.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  On 14 February 2008, the commander confirmed the CI’s exposure to combat experiences and his diagnosis of PTSD and TBI, but noted he had worked through the memory issues, with only minor signs of memory loss, anger issues and panic attacks.  The 27 February 2008 MEB mental health addendum examiner noted improved memory secondary to problem-solving and memory games, and assessed “PTSD was in partial remission” with a Global Assessment of Functioning score of 73 (mild symptoms, impairment).   The subsequent 17 April 2008 commander’s statement did not mention PTSD or TBI, and at that time, the CI was working up to 40 hours a week in a job not in his military specialty.  Neither of the conditions were profiled or failed retention standards.  There was no performance-based evidence from the record that either 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 the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic LBP and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the chronic RLE pain and IAW VASRD §4.124, the panel recommends no change in the PEB adjudication.  In the matter of the contended PTSD and TBI 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 20170314, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record