RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04450
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050324 

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 “chronic radiating low back pain” and “pain and weakness into right foot from above disk herniation,” each rated 10%, with a combined disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  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 - 20050127 	VARD - 20051130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5243	10%	Intervertebral Disk Disease at L5-S1 with Herniated Nucleus Pulposus	5243	20%	20050915	
Pain and Weakness into Right Foot from above Disk Herniation	5243-8524	10%	Radicular Impingement with Superficial Peroneal Neuropathy	8522	0%	20050915	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Radiating Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in early 2004 when he slipped and fell on ice.  Lumbosacral spine X-rays performed in March 2004 were normal.  A lumbosacral spine MRI performed in July 2004 revealed a focal right-sided spinal disc protrusion that abutted the right S1 nerve root.  Surgery was recommended; however, it was reasonably declined.

The 27 September 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, revealed lumbar tenderness with altered sensation to the right lower extremity.  Additionally, L5 and S1 reflexes were decreased on the right lower extremity.  The 22 October 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of LBP while bending, stooping, pushing, pulling, lifting, carrying and prolonged standing or marching.  Pain radiated into the right leg when lying flat on the back.  Physical evaluation showed a hobbling gait which favored the right leg.  Ankle and knee reflexes were normal.  Thoracolumbar-goniometric-repetitive range of motion (ROM) was flexion to 90 degrees (normal) and combined ROM of 215 degrees (normal 240); painful motion was not addressed.

During the 25 July 2005 VA Compensation and Pension (C&P) general evaluation, 4 months after separation, the examiner noted good posture and a normal gait without a limp.  At the 15 September 2005 VA C&P spine evaluation, 6 months after separation, the CI reported right lower extremity pain which was greater than the back pain.  Physical examination revealed a normal gait and the ability to heel and toe walk.  There was flattening of the normal lumbar lordotic curve with muscle spasm.  Tenderness was also present.  Right straight leg raise test for radiculopathy was positive.  Repetitive right thigh musculature and calf motor strength testing was negative.  Thoracolumbar ROM was flexion to 90 degrees and combined ROM was 210 degrees; painful motion was present.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5243 (intervertebral disc syndrome (IVDS)), citing spinal tenderness.  The VA rated the back condition at 20%, coded 5243, based on the C&P spine examination, citing muscle spasm severe enough to result in an abnormal spinal contour such as reversed lordosis.

Although there was insufficient limitation of motion to support a 10% rating, the panel agreed that a 10% rating was justified for the presence of spinal tenderness, as recorded on the MEB and VA examinations.  Even though there was spinal muscle spasm and abnormal contour recorded by the VA spine examination, the panel agreed the totality of STR evidence did not reveal these findings to support the next higher 20% rating on this basis.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of a higher rating under the alternate VASRD formula for that condition.

Pain and Weakness into Right Foot from Disk Herniation.  According to the STR, the CI’s right foot condition began approximately in May 2004 when he was treated for right foot tingling above the ankle.  In addition to the aforementioned radiating pain evidence, the 13 July 2005 VA C&P evaluation of the feet, 4 months after separation, revealed normal motor strength, normal reflexes and no evidence of painful motion, edema, weakness, instability or tenderness.  There was diminished right foot light touch sensation over the top region indicative of the peroneal nerve distribution.  During the 25 July 2005 C&P general evaluation, physical examination revealed good peripheral pulses in the dorsalis pedis (top of right foot) and the tibialis posterior and normal reflexes throughout.  The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right foot condition 10%, dual coded 5243-8524 (IVDS-tibial nerve paralysis) citing mild incomplete paralysis.  The VA rated the right foot condition 0%, coded 8522 (paralysis of the superficial peroneal nerve) based on the C&P foot examination, citing a non-compensable evaluation due to mild right foot neuropathy.

The panel noted the MEB NARSUM, VA foot and VA general examinations documented normal right ankle reflexes.  Additionally the VA foot evaluation specifically documented the absence of bilateral foot weakness.  The only objective nerve-related issue was the diminished right foot light touch sensation, over the top region indicative of the peroneal nerve distribution, in which the panel agreed was “mild.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication of right foot condition.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right foot condition and IAW VASRD §4.124a, the panel recommends no change in the PEB adjudication.  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 20170503, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006651 XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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.

Sincerely,					      
Enclosure