RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE: PD-2017-04260 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070531

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 “sciatic neuralgia” and “chronic low back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION: The conditions continue to worsen and negatively affect daily activities. 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 - 20070503	VARD - 20070723	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sciatic Neuralgia	8720	10%	Sciatica, Left Lower Extremity	8524	0%	STR	
Chronic Low Back Pain	5237	0%	Degenerative Disc Disease, Lumbosacral	5242-5010	10%	STR	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Chronic Low Back Pain and Sciatic Neuralgia. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his back in May 2003 after a fall while deployed to Iraq. He suffered persistent low back pain, radiating to the left lower extremity (LLE), after redeployment. Imaging (serial X-rays, CT, and MRI) demonstrated a protrusion at L5- S1 with possible impingement on left nerve root. There was documentation in STR provider notes of non-specific painful and limited range of motion (ROM), and one entry that described ROM as

“markedly restricted.” There was STR documentation of a normal gait and spinal contour, with no conflicting evidence, and no documentation of incapacitating episodes.

The LLE radicular pain was variable, but consistent, and multiple STR providers affirmed that there was no subjective weakness or associated sensory symptoms. There were multiple neurological examinations in evidence and all but one (neurosurgical consult of 26 October 2006) showed normal motor, sensation and reflexes. The neurosurgeon described the LLE pain as a “pseudoradiculopathy” with no subjective motor or sensory complaints comprising 20% of the overall pain. Neurological findings were normal with the exception of “minimal diminished sensation in the right [emphasis added, not clear if dictation error] S1 dermatome.” An electrodiagnostic study (EMG) was normal except for a diminished response in the left superficial peroneal nerve that was inconclusive for a spinal radiculopathy and possibly a peripheral neuropathy, thereby judged to be non-diagnostic. Therefore, the CI was not a surgical candidate.

During the 19 March 2007 MEB NARSUM examination, 2 months prior to separation, the CI complained of constant low back pain of variable intensity that was aggravated by running, load bearing, lifting, and prolonged sitting or walking. This was associated with “shock like” LLE radiation (buttock and posterior leg) with no subjective weakness. The physical examination recorded a normal gait, without note of tenderness and spasm, and normal neurological findings (5/5 strength all groups, intact sensation and normal reflexes). The examiner provided the only formal ROM measurements in evidence. These were flexion to 60 degrees (normal 90) with a combined ROM of 165 degrees (normal 240), specifying painful motion. There was no temporally probative VA examination or other post-separation evidence.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 0%, coded 5237 (lumbar strain), citing “no mechanical loss of motion” (suggesting application of Army Regulation 635-40 [B-29, e]). The VA, based on the same STR evidence, rated the back condition 10%, dual coded 5242-5010 (degenerative arthritis of the spine – arthritis due to trauma) citing painful motion.
The NARSUM ROM examination was the only evidence available that was compliant with VASRD
§4.46 (accurate measurement), and the recorded flexion to 60 degrees is the threshold for a 20% rating IAW the VASRD §4.71a spine formula. The panel thus agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported in the NARSUM examination. There was no evidence of incapacitating episodes to support a higher rating under that formula.

The panel next addressed the associated sciatic neuralgia. The PEB rated it 10%, coded 8720 (sciatic nerve, incomplete paralysis), citing the applicable VASRD §4.124a criterion of “mild” nerve impairment. The next higher 20% rating of code 8720 is for “moderate” impairment. The VA rated the condition 0%, coded 8524 (internal popliteal [tibial] nerve, incomplete paralysis), based on the STR evidence, citing a lack of current medical evidence. The panel agreed that the PEB’s use of VASRD code 8720 was applicable to the rating of sciatic radiculopathy, although the VA application of code 8524 offers an equivalent rating scale. The panel considered, however, that the EMG-confirmed nerve involvement would fall under code 8522 (superficial peroneal) which limits ratings to 0% for “mild” and 10% for “moderate” impairment. All panel members agreed that rating for moderate impairment could not be supported under any code, given the lack of any significant objective findings of nerve impairment.

Members further deliberated whether a minimum 10% rating under any code was justified, given the §4.71a spine formula stipulation for rating “with or without symptoms such as pain (whether or not it radiates).” There was no evidence (subjective or objective) for any nerve disability other than radiating pain, thus a question of pyramiding (VASRD §4.14) was raised. Panel members ultimately agreed that a rating greater than 0% could not be justified for the nerve condition.

The issue of pyramiding may have been moot for the PEB with its 0% spine rating, but the panel must carefully adhere to VASRD guidance. The neuropathy was manifested only by radiating pain, and per the neurosurgeon did not make a major contribution to the overall pain. There was also the question raised by the EMG as to whether the nerve condition constituted a spinal radiculopathy. If it did, it was subsumed by the spine rating as above. If it did not, it was subject to separate rating under a code that would yield a 0% rating anyway. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the back condition under code 5242 and a 0% rating for the sciatic neuralgia under code 8799-8720.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a. In the matter of the sciatic neuralgia, the panel recommends a disability rating of 0%, coded 8799-8720 IAW VASRD §4.124a. 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, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5242	20%	
Sciatic Neuralgia	8799-8720	0%	
	COMBINED	20%	

The following documentary evidence was considered:

PD-2017-04260 

AR20190012176, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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 also been provided to the Department of Veterans Affairs.