RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04916
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Military Policeman, medically separated from the Temporary Disability Retired List (TDRL) for a “history of post T3/4 operative residuals from disc herniation with loss of sensation (left) and foot drop [right]” with a disability rating of 10%.   

CI CONTENTION:  Should be given a higher rating due to his current condition/overall health.  The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060929	VARD - 20070817	
Condition	Code	Rating	Condition	Code	Rating	Exam	
History of Post T3/4 Operative Residuals from Disc Herniation with Loss of Sensation (Left) and Foot Drop (Right)	5243- 8520	10%	Residual of Thoracic Spine Fusion at T3-T4, S/P Open Back Surgery with Lumbosacral Spondylolisthesis of L5-S1	5239-5241	10%	20030106	
			Brown-Sequard's Syndrome of the Left Lower Extremity	8520	10%	20040105	
			Brown-Sequard's Syndrome of the Right Lower Extremity	8520	10%	20040105	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Thoracic Spine condition with Loss of Left Leg Sensation and Right Foot Drop.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent posterior laminectomy and discectomy at T3-T12 in October 2002.  This operation was not beneficial and the CI subsequently underwent fusion at T3-4 in February 2003 via a right thoracotomy (through the chest wall).  Spinal cord monitoring during the 2003 surgery noted a deficit in the right leg.  Postoperatively, he was unable to move the right leg but had incomplete gradual return of strength.  He was using a foot drop brace but could walk without aids.  The CI was separated and placed on the TDRL on 7 July 2003.

The 21 June 2006 orthopedics TDRL evaluation, 4 months prior to TDRL removal, noted the CI’s motor status had not changed significantly since placement on the TDRL.  Sensation had not improved and he had no pain or temperature sensation on the left side and balance remained disturbed.  There was urinary and bowel urgency but no incontinence and he had problems maintaining an erection, but could ejaculate.  He had variable upper back discomfort, mostly on the right in the para spinal area, and intermittent pain during the day, depending on his activity level and how he moved.  There was intermittent pain throughout the night and he usually awakened once or twice per night to reposition himself.  He no longer took medication for this back, had received a Bachelor’s degree and was working as an accountant.  He could stand and walk without restriction but needed to move about.  He was able to ride a bicycle and swim but had not tried to run.  He remained aware of relative right lower extremity weakness.  

On examination, the CI walked unaided with an essentially normal gait.  Thoracolumbar range of motion (ROM) was normal (fingertips reached his ankle with forward flexion) and there was no tenderness, but formal ROM measurements with an inclinometer showed flexion to 50 degrees (normal 90) and extension to 30 degrees (normal).  Painful motion was not addressed.  He could walk on the balls and heels of both feet, but had balance problems.  The right hip flexors showed 4/5 strength but the motor examination was otherwise normal.  Thigh circumference above the patella was 54.5 cm on the right and 57 cm on the left.  Maximum calf circumference was 38 on the right and 38.5 on the left.  There was decreased pin prick over the left lower rib cage and absent pin prick sensation on the left side affecting the trunk from T10 down and the entire left lower extremity.  Cold sensation was absent over the lower left trunk, abdomen and entire left lower extremity.  Position sense was intact bilaterally.  Tandem gait was performed well but with difficulty.  Babinski was positive bilaterally.  The examiner noted his current symptoms were mild and he had been leading a normal lifestyle.  The examiner also indicated the CI was capable of performing required military activities and supported his return to active duty.  He recommended a permanent L2 profile and would consider revising after a trial of duty.  

The panel directed attention to its rating recommendation based on the above evidence.  The CI was removed from the TDRL with a permanent disability disposition of separation with severance pay at 10%, coded 5243-8520 (intervertebral disc syndrome-paralysis of sciatic nerve).  The PEB cited minimal weakness of right hip flexors at 4/5 strength, atrophy of right thigh and calf circumference, decreased sensation on the left side from T10 to entire left lower extremity.  There was no VA examination proximate to separation in evidence.

The PEB combined the back, right foot and loss of sensation in the left leg conditions under a single disability rating, coded 5243-8520 (intervertebral disc syndrome with incomplete paralysis of the sciatic nerve) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  

The profile, the TDRL examination and the MEB cited post-operative residuals of the thoracic spine, left leg loss of sensation and right foot drop as unfit, so each condition is reasonably considered unfit.  The TDRL examiner measured the thoracolumbar ROM with an inclinometer rather than the required goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  The results were not consistent with the conforming MEB examination, and were not consistent with the known pathology.  The panel determined the thoracic spine condition was unfitting but there was no evidence of painful motion, limited motion or tenderness to warrant a rating higher than 0%.   The TDRL examination showed loss of sensation in the left leg and foot drop in the right leg.  There was also loss of pin prick sensation of the left trunk and left lower extremity with residual balance dysfunction.  The right leg showed mild spasticity and weakness manifested by right thigh atrophy, hyperreflexia and positive Babinski test.  Although there was evidence of an essentially normal gait, the tandem gait was performed with some difficulty.  The evidence supported mild disability for each leg, rated 10% each under code 8520.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 0% for the thoracic spine condition, coded 5243, 10% for the loss of left leg sensation, coded 8520 and 10% for the right foot drop condition, coded 8520.  

BOARD FINDINGS:  In the matter of the thoracic back condition, the panel majority recommends a disability rating of 0%, coded 5243 IAW VASRD §4.71a, at the time of TDRL removal and permanent disability disposition.  In the matter of the loss of sensation of the left leg, the panel majority recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a, at the time of TDRL removal and permanent disability disposition.  In the matter of the right foot drop condition, the panel majority recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124, at the time of TDRL removal and permanent disability disposition.  The single voter for dissent recommends no change but does not elect to submit a minority opinion.  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 the date of medical separation: 

CONDITION	VASRD CODE	PERMANENT RATING	
Post T3/4 Operative Residuals from Disc Herniation	5243	0%	
Loss of Sensation (Left)	8520	10%	
[Right] Foot Drop	8520	10%	
COMBINED	20%	

XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified to 20% 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. 

Sincerely,					       
						      					
Enclosure