RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02992
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O3, Ordnance Officer, medically separated for “intervertebral disc syndrome (IVDS) described as lower back pain” and “L-5 radiculopathy right lower extremity (RLE),” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Rating for right lower extremity lumbar radiculopathy connected with my degenerative disc disease should have been included in my rating.  Additionally I was incorrectly diagnosed as adjustment disorder during my medical board process the VA has since diagnosed combat related PTSD as the symptoms have been ongoing since my return from Iraq in 2006.”  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 - 20080924	VARD - 20090321	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS … Lower Back Pain	5243	10%	DDD, Lumbar Spine	5242	10%	20081105	
L-5 Radiculopathy Right LE	8699-8620	10%	No VA Placement	
Adjustment Disorder	Not a Physical Condition Constituting a Physical Disability	Adjustment Disorder with Anxiety and Depression	9440	10%	20081124	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

IVDS.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain (LBP) began in November 2006 after doing physical training.  He initially reported localized LBP and was treated with medications and home exercises.  In January 2007 he reported tingling in both lower extremities (LEs) and a lumbar spine MRI showed degenerative disc disease (DDD) at L4-5 and L5-S1 with a right paracentral disc bulge that slightly displaced the right S1 nerve root.  At a neurosurgical examination on 7 June 2007 the neurosurgeon indicated an electrodiagnostic study in April 2007 suggested a right S1 nerve root compression and left L5 nerve root compression.  A trial of epidural steroid injections (ESIs) was recommended.  A repeat lumbar spine MRI on 23 October 2007 was essentially unchanged; noted were a mild diffuse disk bulge with a focal protrusion and annulus fibrosis tear posteriorly, without central canal or neuroforaminal (area through which the spinal nerves exit) stenosis.  There was no suggestion of a mass lesion of the spinal cord or vertebral column.  A lumbar CT myelogram performed on 29 November 2007 showed no nerve root compression and no surgery was recommended.  The CI was treated with anti-inflammatories, muscle relaxants, medication for nerve-related pain, physical therapy/aqua therapy, and chiropractic treatment.  There was some improvement in the LE symptoms, but LBP and LE pain, predominately on the right, continued.  Approximately a year before separation the CI was placed on medication (Lyrica) for chronic /nerve-related pain.  He reported Lyrica worked very well for his pain.  

During the 6 February 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 11 months prior to separation, the CI reported recurrent LBP related to his herniated disc.  Physical examination showed no spinal tenderness or muscle spasm.  Back ROM was flexion of 70 degrees and combined ROM of 180 degrees and the examiner indicated the measurements were approximate and not measured with a goniometer.  A same-day primary care (PC) visit noted the CI requested a cane for occasional assistance with difficulty walking due to pain.  A PC note dated 11 February 2008 indicated the PC physician had ordered a cane for the CI to aid with stability, usually at the end of the day.  Physical therapy (PT) measured thoracolumbar (TL) ROM for the MEB on 29 February 2008, 10 months prior to separation, and after three repetitions flexion was 70 degrees and combined ROM was 205 degrees.  All motions were limited due to pain.  The therapist noted the CI had a normal gait and there was no tenderness, muscle spasm, guarding, or abnormal spinal contour.  

At the 29 May 2008 MEB NARSUM examination, 7 months prior to separation, the CI reported complaints of LBP after walking 40 minutes, standing more than 15 minutes, or with repetitive bending or stooping.  He also reported difficulty going down stairs or running.  He reported flares of pain once or twice per month.  Physical examination showed a normal gait and “apparent” good ROM as the CI was preparing for the examination.  There was no tenderness or deformity of the spine.  There was no muscle spasm or muscle atrophy.  An undated MEB addendum (but following the CI’s MEB appeal dated 17 July 2008) noted the CI’s statement regarding gait disturbance as the day progressed for the PEB’s consideration.  At chiropractic visits in June and July 2008, physical examinations noted muscle spasms of the thoracic spine, but not of the lumbar spine, with normal gait and stance.  

PT measured TL ROM for the MEB again on 14 July 2008, 5 months prior to separation, and after three repetitions flexion was 90 degrees and combined ROM was 235 degrees, with painful motion.  The therapist noted the CI lost his balance while performing extension ROM and this limited his extension.  All other motions were limited by pain.  There was no tenderness, muscle spasm, guarding, or abnormal spinal contour.  At the examination the CI was noted to have an abnormal gait as he used a cane in his left hand.  There continued to be no tenderness, muscle spasm, guarding or abnormal spinal contour.  

Following initiation of treatment with Lyrica, the CI reported decreased LBP rated 1-3/10 at the large majority of visits in the year before separation, and occasional radiation down the right leg.  He reported that he used pain medication as needed when the pain was increased, usually at night.  Notes in the STR documented five periods of increased pain with guarding, an antalgic gait, limping, or use of a cane documented in the year before separation.  In the 4 months prior to separation, the CI reported stable pain levels rated 2-3/10.  At a case management meeting on 22 October 2008, Lyrica and stretching were working well and he was obtaining good relief with those modalities.  

At the 5 November 2008 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported constant moderate pain, weakness, stiffness, fatigue, and lack of endurance of the lumbar spine.  He reported medications were helpful but did not resolve the problem.  The CI reported his condition did not preclude walking extended distances, but his discomfort was always increased after the activity.  He denied unsteadiness.  He had difficulty remaining seated for extended periods of time and ambulating was difficult if muscle spasms were present and caused a limp.  He wore a lumbar spine support during vigorous physical activity and it was helpful.  He denied any periods of physician-prescribed bed rest for the condition in the past 12 months.  The VA examiner noted the CI “attends this examination with the use of a cane.”  Physical examination documented a normal posture and gait, and no muscle atrophy.  There was tenderness of the lumbar vertebra and paravertebral muscles.  Strength of great toe dorsiflexion and LE reflexes were normal bilaterally.  Sensation was intact.  Back ROM after three repetitions was flexion of 90 degrees and combined ROM of 240 degrees, with painful motion noted with right lateral flexion and right rotation.  There was no change in ROM with repetition or when resistance was applied to the lumbar spine.  The VA examiner indicated that additional functional loss during flare-ups other than at the physical examination could not be determined without resorting to speculation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, coded 5243 (IVDS), citing overall TL ROM between 121 degrees and 235 degrees.  The VA rated the LBP 10%, coded 5242 (degenerative arthritis of the spine), based on the STR and C&P examinations, citing tenderness over the lumbar vertebrae and the paravertebral muscles bilaterally without evidence of abnormal gait, spasm, or abnormal spinal contour.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on both PT MEB examinations and the MEB Form 2808 examinations proximate to separation.  The CI was given a cane to use as needed and a note in the STR suggested it was for use particularly at the end of the day.  Notes in the STR for 4 months prior to separation noted pain levels were stable and well controlled on his medication regimen and there were no exacerbations documented during this period.  At the VA examination the CI reported difficulty ambulating due to muscle spasms at times.  However, there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour documented at the PT MEB, MEB, or VA examinations, thus the next higher 20% rating was not justified on this basis.  Although the CI did have IVDS, there was no evidence of 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the LBP.  

L-5 Radiculopathy Right LE.  According to the STR and MEB NARSUM, in January 2007 the CI developed radiating pain, numbness and tingling of both LEs, worse on the right, following the onset of LBP a couple months earlier as noted above.  Lumbar spine MRI in February 2007 showed DDD with a right paracentral disc bulge that slightly displaced the right S1 nerve root.  Electrodiagnostic studies on 10 April 2007 showed right L5-S1 radiculopathy.  At a neurosurgical examination on 7 June 2007 the neurosurgeon indicated the electrodiagnostic testing had suggested right S1 and left L5 nerve root compression.  A trial of ESIs was recommended.  A repeat lumbar spine MRI on 23 October 2007 was essentially unchanged, ; with noted were a mild diffuse disk bulge with a focal protrusion and annulus fibrosis tear posteriorly, without central canal or neuroforaminal (area through which the spinal nerves exit) stenosis noted.  A lumbar CT myelogram performed on 29 November 2007 showed no nerve root compression.  As noted above, the CI was treated conservatively with some improvement in the LE symptoms, but LBP and predominately right LE pain continued.  A repeat electrodiagnostic study of the right LE was performed on 18 January 2008 and showed a moderate L5 radiculopathy; the examiner indicated the results were consistent with the April 2007 study.

During the 6 February 2008 MEB examination, the CI reported recurrent back pain and nerve root compression resulting in lower back, right leg and foot pain that limited use of the right leg.  Physical examination showed no spinal tenderness or muscle spasm and straight leg raise testing was negative.  A primary care note 5 days later indicated the PC physician had ordered a cane to aid with stability, usually at the end of the day.  Physical therapy measured TL ROM for the MEB on 29 February 2008 and at the examination the CI had a normal gait.  At the 29 May 2008 MEB NARSUM examination, 7 months prior to separation, the CI reported difficulty going down stairs or running.  He reported flares of pain once or twice per month.  Physical examination showed a normal gait.  Strength of both flexors and extensors of the legs and feet were normal.  There was “slight” numbness over the lateral thigh and great toe on the right.  Reflexes were normal and SLR was negative.  At the PT examination for the MEB, 5 months prior to separation, the CI was noted to have an abnormal gait as he used a cane in his left hand.  The therapist stated the CI “ambulated independently with a straight cane in his left hand,” and also noted the CI lost his balance while performing extension ROM.  

At the C&P examination, the CI reported constant moderate pain of the lumbar spine with associated numbness and pain of the right LE that extended to the foot and was always present.  He reported medications were helpful but did not resolve his problems.  The CI reported his condition did not preclude walking extended distances, but his discomfort was always increased after the activity.  He denied unsteadiness.  The VA examiner noted the CI “attends this examination with the use of a cane.”  Physical examination showed a normal gait.  Strength of great toe dorsiflexion and LE reflexes were normal bilaterally.  Sensation was intact.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right LE radiculopathy condition 10%, analogously coded 8699-8620 (neuritis), citing a neuritis condition confirmed on EMG and rated as mild because the area involved was less than the entire sciatic nerve; motor function and reflexes were intact.  The VA did not address or establish a radiculopathy condition rating in the original VA Rating Decision.  Panel members noted there was evidence to support a 10% rating for mild right L5-S1 neuritis based on pain and sensory decrease.  However, there was no evidence of right LE weakness or reflex loss to support a higher rating for moderate neuritis.  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 right LE radiculopathy condition.  

Contended PEB Condition:  Adjustment Disorder.  In accordance with the DoDI 1332.38, E4.13.1.4 and E5, in effect at the time of separation, adjustment disorder does not constitute a physical disability, and is therefore not compensable.  

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the L5 radiculopathy of the right lower extremity condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  In the matter of the contended adjustment disorder, the panel agrees it cannot recommend it for additional disability rating.  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 20170331, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190008738, XXXXXXXXXXXXXXXXXX 

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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.