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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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX.	CASE:  PD-2017-04106
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081209

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

CI CONTENTION:  “Over time my back pain has increased…invertebral disk syndrome right lower extremity.”  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 - 20081007	VARD - 20090223	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Low Back Pain	5299-5243	20%	Persistent Low Back Pain 	5243	20%	20081014	
Mild Right L5 Sensory Changes on Right Lower Extremity 	Not Unfitting	Intervertebral Disc Syndrome with the Right Deep Peroneal Nerve 	8599-8520	20%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L4-5 microdiskcectomy/laminectomy in October 2006.  Electrodiagnostic studies completed on 11 August 2008 were normal for right lower extremity radiculopathy.  
The physical therapy goniometric range of motion (ROM) study on 14 August 2008, 4 months prior to separation, showed 70 degrees of forward flexion (normal 90), after repetition, and combined ROM of 190 degrees (normal 240), after repetition, with pain noted.  The examiner noted abnormal gait due to guarding.  An MRI of the lumbar spine done on 14 September 2008 showed right-sided disk extrusion L4-5 and equivocal left intraforaminal disk protrusion at L3-4.  

At the 26 September 2008 MEB NARSUM examination, 3 months prior to separation, the CI reported chronic daily 6-8/10 back pain and noted the original pain and numbness in his right leg improved, but still had mild residual decreased sensation over the right leg and lateral foot area.  He could not stand for more than 10 minutes due to spasm and tightness, lift more than 10 pounds or do repetitious bending, squatting or stooping actions.  Physical examination showed a markedly abnormal gait as he tilted his body to the right about 8-10 degrees as measured by goniometer.  He was stiff in movement when turning and sitting, but was able to stand from sitting in a chair without pushing up on arms.  He had marked spasms in the lower back with paravertebral tenderness.  The ROM evaluation showed 45 degrees of flexion and combined ROM of 120 degrees.  Reflexes were 1+ on the right patellar and Achilles, and there was mildly decreased subjective sensation in the right lower leg, mainly to distribution to the right lateral foot along L5-S1.  However, light touch was intact, there was no hyperesthesia and he could heel-to-toe walk.  

At the 14 October 2008 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported stiffness and constant, sharp 8/10 LBP that traveled to his left hip and was elicited by physical activity.  He denied incapacitation.  Physical examination showed normal posture, but his gait was antalgic and asymmetrical due to right lower extremity distal weakness.  The ROM evaluation showed 50 degrees of flexion and 135 degrees of combined ROM, with pain in all planes of motion.  The joint function of the spine was additionally limited by 15 degrees following repetitive use due to pain, fatigue, weakness and lack of endurance with pain as the major functional impact.  There were signs of intervertebral disc syndrome (IVDS) in the L4-5 and S1 regions, noted by sensory deficits and motor weakness in the right lower extremity.  The IVDS did not cause any bowel, bladder or erectile dysfunction.  Motor and sensory function were within normal limits.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded analogously 5299-5243 (IVDS), citing limitation of motion, abnormal gait and spasm and noting the rating also included consideration of functional loss IAW VASRD 4.10, 4.40, 4.45 and 4.59.  The VA also rated the back condition 20%, coded 5243, based on the C&P examination, citing limitation of motion, abnormal gait and spasm.  The VA assigned an additional rating of 20%, coded analogously 8599-8520 (sciatic nerve, paralysis of), as “IVDS with the right deep peroneal nerve as the most likely peripheral nerve involved.” 

The C&P and NARSUM documented flexion measurements of 50 and 45 degrees respectively.  The C&P examiner noted an additional 15 degrees of limitation of motion but did not specify in what plane of motion this occurred.  According to the General Rating Formula for Diseases and Injuries of the Spine, flexion greater than 30 degrees but not greater than 60 degrees, meets criteria for a 20% rating.  There was no evidence of incapacitating episodes which 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 that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Condition:  Mild Right L5 Sensory Changes on Right Lower Extremity.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The CI had mild right L5 sensory changes of the right lower extremity documented in the treatment records, but the electrodiagnostic evaluation of the right lower extremity was normal.  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).”  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  He was able to work and function with pain using medication.  The panel therefore concluded that an additional disability rating was not justified on this basis.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the contended mild right L5 sensory changes on right lower extremity, 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: