RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXX	CASE: PD-2017-04295
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20051112

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Military Police, medically separated for “chronic low back pain [LBP]” and “left lower extremity [LLE] radiculopathy,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION: “…don’t agree to rating…rated 100% by the VA…” 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 - 20051019	VARD - 20060907	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	Residuals of Low Back Injury, P/O L4-L5	5237	10%	20060713	
LLE Radiculopathy	8520	10%	Left Lower Radiculopathy with Epidural Fibrosis	8620	20%	20060713	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Chronic LBP and LLE Radiculopathy. Since the low back and LLE radiculopathy conditions are closely related, the facts are presented together for administrative efficiency, with rating recommendations for each of the unfitting conditions following. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s chronic LBP and LLE radiculopathy began in April 2005 after the CI jumped off a vehicle during a mortar attack. Lumbar MRI on 19 May 2005 showed degenerative changes at L4-5 and L5-S1.   There was

evidence of a prior left-sided disc surgery at L5-S1 with small amounts of soft tissue contacting the left S1 nerve root, possibly recurrent disc material or scar tissue. The CI had a history of L5- S1 surgery in 1997, prior to this period of active duty. On 30 June 2005, electrodiagnostic studies were consistent with “chronic L4-L5 radiculopathy, consistent with the CI’s history.” The CI underwent a left L4-L5 discectomy in approximately mid-July 2005. He initially did well for approximately one month but then had recurrent LLE pain. Repeat MRI on 27 June 2005 showed degenerative disc disease (DDD), recurrent herniated/bulging disc at L4-5 and L5-S1, with evident scar tissue.  No further surgery was recommended.

The 15 September 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of LBP and LLE pain. On physical examination the CI was in apparent distress. He had an antalgic gait with positive testing for radicular symptoms (tripod sign, straight leg raise [SLR]). On the left he had difficulty heel walking due to weakness of foot dorsiflexion and slight difficulty toe walking. Strength of plantar flexion was graded 4/5 and dorsiflexion 3/5 (can move against gravity but not resistance). There was “slight” decreased sensation in the big and middle toes. Back ROM was flexion of 60 degrees (normal 90) and combined ROM of 205 degrees (normal 240). Left side bend and rotation caused pain with radiation to the LLE. During the 22 September 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported chronic LBP and pain, numbness and tingling of the LLE. Physical examination showed back ROM was “severely limited in all fields with pain.” There was tenderness in the area of the sciatic nerve.

At the 13 July 2006 VA Compensation and Pension (C&P) examination, 8 months after separation, the CI reported that after surgery and rehabilitation, his spine pain decreased but he still complained of pain radiating to his LLE with numbness and weakness of the left leg. He reported significant improvement with an epidural steroid injection after the surgery. Flare-ups of pain occurred with bending, lifting, or prolonged walking. His back pain radiated to the left sacroiliac joint and LLE. He denied bowel or bladder problems. The CI was employed as a corrections officer and reported his job was sedentary. On physical examination the CI was not in acute distress. He had a limping gait “on the left leg with the help of a cane.” The spine was normal in appearance and scars from his prior surgeries were well healed. There was tenderness along the lumbar spine. Flexion was 70 degrees and combined range of motion (ROM) was 200 degrees. No muscle spasms were noted but increased pain, easy fatigability, lack of endurance and “decrease of ROM by 5 degrees more” was noted with repetitive motion. Deep tendon reflexes were 3+ and equal bilaterally. There was circular numbness of the left lower leg and foot in the L4, L5, and S1 dermatomes. Seated SLR was negative, but supine SLR was positive on the left at 60 degrees. Weakness was noted in dorsiflexion of the left foot and great toe. Muscle strength was 3/5, with normal plantar flexion strength. The CI was able to stand on his toes and heels, although he had some problem with staying on the left heel due to weakness in dorsiflexion of the left foot. The VA examiner noted there was also a symptom of radiculitis on the left. Lumbar spine X-rays showed DDD, greater at L5-S1.

The panel directed attention to its rating recommendation for the low back based on the above evidence. The PEB rated the chronic LBP 10%, coded 5243 (intervertebral disc syndrome [IVDS]) citing persistent radiculopathy in the LLE and loss of spinal motion due to pain. The VA also rated the back condition 10%, coded 5237 (spinal stenosis), based on the C&P examination, citing forward flexion of thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

The panel noted the ROM at the MEB NARSUM examination supported a 20% based on flexion of 60 degrees, but the VA examination supported a 10% rating based on flexion more than 60 degrees and combined ROM greater than 120 degrees, without muscle spasm or guarding severe enough to cause an abnormal gait or abnormal spinal contour. The CI was 4 months post-surgery at the time of the MEB NARSUM examination, but the VA examination was a year after his surgery.  In this case the panel placed greater probative value on the VA examination for  rating

the CI’s permanent impairment after back surgery because it may take a year or more to reach maximal medical improvement after back surgery. There was no documentation of IVDS with 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 there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back condition.

The panel directed attention to its rating recommendation for the LLE radiculopathy based on the above evidence. The PEB rated the LLE radiculopathy condition 10%, coded 8520 (sciatic nerve, incomplete paralysis) citing radiculopathy manifested by pain and weakness. The VA rated the LLE radiculopathy with epidural fibrosis condition 20%, coded 8620 (sciatic nerve neuritis) based on the C&P examination, citing numbness of the left extremity with weakness in dorsiflexion of the foot noted as moderate.

The panel agreed a 20% rating was supported for sciatic neuritis manifested by LLE radicular pain, decreased sensation of the left lower leg and foot, moderate (3/5) weakness of left foot dorsiflexion, with an abnormal gait and use of a cane as noted on the VA examination. Despite being 12 months post-surgery at the time of the VA examination, significant findings of LLE radiculopathy remained. The panel agreed the radiculopathy could not be characterized as severe based on the CI’s ability to heel and toe raise, albeit with some difficulty on the heel, and he did not require a brace to ambulate due to foot drop. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the LLE radiculopathy condition, coded 8620.

BOARD FINDINGS: In the matter of the chronic low back condition and IAW VASRD §4.71a the panel recommends no change in the PEB adjudication. In the matter of the left lower extremity radiculopathy condition, the panel recommends a disability rating of 20%, coded 8620 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; 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	
Chronic Low Back Pain	5243	10%	
Left Lower Extremity Radiculopathy	8620	20%	
	COMBINED	30%	

The following documentary evidence was considered:

                                                                   PD-2017-04295

		PD-2017-04295

AR20190012709, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent disability retirement with the combined disability rating of 30% 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 permanent 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), XXXXXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.