RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX  	CASE:  PD-2017-04959
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Multiple Launch Rocket System Crewmember, medically separated for “low back pain (LBP) with left S1 radiculopathy” with a disability rating of 20%.   

CI CONTENTION:  His lumbar spine condition has worsened since separation to include pain spreading to the upper body along with strong headaches.  This contention includes 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 – 20030318	VARD – 20030611 and 20040102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP with Left S1 Radiculopathy	5293-5299-5295	20%	Lumbar DDD with Left L5 Radiculopathy	5292-5243	20%	20031201	
			Lumbar DDD with Left L5 Radiculopathy, (Neurologic manifestations) Left Leg	5243-8620	10%	20031201	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

LBP with Left S1 Radiculopathy.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI insidiously developed LBP that progressively worsened to include an extension of radicular pain into his left lower extremity.  Radiologic studies revealed a broad-based disk protrusion at the level of L5-S1 with a significant mass effect upon the left-sided S1 nerve, all consistent with his subjective complaints and eventual physical examination (PE) findings.  He underwent a surgical discectomy in June 2002.  Although a majority of his painful symptoms improved after surgery, LBP and some leg pain remained.  On 15 November 2002, 6 months prior to separation, a primary care encounter noted that the CI’s posture, gait, peripheral reflexes, strength, sensation, and spinal range of motion (ROM) were normal.  During the 26 December 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported LBP associated with left-sided peripheral numbness and weakness when lifting his left leg.  His PE revealed decreased muscle mass in the left leg and altered sensation in the left fourth and fifith toes.  

At a 7 February 2003 VA Compensation and Pension (C&P) general medical examination, 3 months prior to separation, the CI endorsed having low back stiffness and pain that extended into his left leg.  Additionally, the CI reported his spinal condition caused bedrest and the attention of a physician at least once per month.  His PE revealed walking with a limp but normal posture.  Lumbar spine ROM was flexion of 45 degrees (normal 60) and extension of 20 degrees, both with pain.  Right lateral flexion was 20 degrees and left lateral flexion and bilateral rotation were each 30 degrees.  Radiation of pain on movement was absent.  Tenderness was absent.  Bilateral straight leg raising tests were negative.  Signs of radiculopathy were absent.  

Four days later, the MEB NARSUM examination noted the CI’s inability to run, jump, perform sit-ups or sit/stand for prolonged periods.  The PE revealed mild low back tenderness and full ROM of the lumbar spine.  Left lower extremity abnormalities included muscle weakness and atrophy, diminished sensation along the S1 nerve route, and an absent left-sided ankle jerk (Achilles reflex).  His gait was described as normal but coordinated. 

At the 1 December 2003 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported continued moderately intense LBP with left leg weakness, numbness, and calf atrophy.  The PE revealed decreased painful motion of the thoracolumbar spine noting forward flexion of 60 degrees (normal 90) and combined ROM of 190 degrees (normal 240).  Although it was documented that thoracolumbar ROM was additionally limited by fatigue, weakness, and lack of endurance following repetitive use, no range deficit was noted.  Tenderness and spasm were present but gait was normal  and there was no guarding.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP with left S1 radiculopathy 20%, analogously coded 5293-5299-5295 (intervertebral disc syndrome (IVDS), lumbar sacral strain) by utilizing the interim VASRD spinal guidelines which were in effect at the time of separation, citing abnormal physical parameters.  The VA initially rated the lumbar spine condition 10%, coded 5292 (spine, limitation of motion, lumbar) based on the 7 February 2003 C&P examination citing ROM was affected by pain which was not considered moderate.  Subsequently, the VA separately rated the LBP condition as well as the neurological manifestations of the left leg condition utilizing a dual code (comprised from both the interim and current spinal rules) of 5292-5243 (spine, limitation of motion, lumbar-IVDS) and (IVDS-neuritis of the sciatic nerve) at 20% and 10%, respectively.   

Although there was intermingling between various spinal guidelines, the coding and rating parameters are dictated strictly by the service date of separation.  Therefore, this case was  reviewed under the “interim spinal rules” which were in effect at the time of separation.  

The 2003 rating codes under discussion in this case are excerpted here.
5285 Vertebra, fracture of, residuals 
5289 Spine, ankylosis of, lumbar
5292 Spine, limitation of motion of, lumbar:
   Severe.........40%; Moderate.........20%; Slight.........10%
5293 Intervertebral disc syndrome:
With incapacitating episodes having a total duration
…of at least two weeks but less than four weeks during the past 12 months........20%
…of at least one week but less than two weeks during the past 12 months ..........10%
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion................40%
Spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position……20%
With characteristic pain on motion.....10%
With slight subjective symptoms only....0%

Despite having numerous clinical encounters within the case file, the panel members apportioned exclusive examination probative value to the pre-separation MEB and primary care reports due to their clinical depth of physical findings and their time reference to the CI’s date of separation.  

Interim spinal VASRD codes 5285, 5289, and 5294 were not supported due to the absence of vertebral fracture, spinal ankylosis or sacro-iliac injury, respectively.  Noting normal spinal ROM on the last probative examination would also not support code 5292 (spine; limitation of motion).  Lastly, the prior evidence of painful motion of the spine was not in evidence in the subsequent probative examination and therefore was not in support of a positive rating under VASRD code 5295 (lumbosacral strain).  

Panel members acknowledged rating under 5293 (IVDS) allowed the panel the latitude to either rate on the total duration of incapacitating episodes over the past 12 months or separate evaluations for chronic orthopedic and neurologic manifestations, whichever method resulted in the higher evaluation.  Absent VASRD-defined incapacitating episodes, members looked at both the orthopedic and neurologic findings.  The findings of spinal tenderness as well as full ROM of the lumbar spine would not, under orthopedic manefistations, support any positive rating level.  In regards to neurologic manifestaions, examinations revealed both sensory and motor abnormalities of altered sensation along the L5-S1 dermatome with residual weakness in the atrophic left calf muscle coupled with an absent left-sided S1 reflex, all of which would analogously support criteria under VASRD code 8520 (incomplete paralysis of the sciatic nerve).  The four levels of possible impairment under code 8520 are 10% (mild), 20% (moderate), 40% (moderately severe), and 60% (severe with marked muscular atrophy).  Panel members considered all four impairment levels and agreed that although muscular atrophy was present, it was not considered ‘marked’ nor were the symptoms considered severe and thus the 60% or 40% levels were not supported.  Panel members concluded that although such symptoms were present, the fact of the CI’s ability to maintain a normal gait coupled with the provider’s statement of “signs of radiculopathy are absent” would not support anything greater than a ‘mild’ 10% condition.  

Utilizing the rating latitude afforded to the panel under the interiem spine rules for 5293, the highest rating possible in this case was a combined 10%.  IAW DoDI 6040.44, the panel may not recommend a rating lower than that received prior to application.  Therefore, 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’s adjudication for the LBP with radiculopathy.  

BOARD FINDINGS:  In the matter of the low back pain with left S1 radiculopathy and IAW VASRD 2003 interim spine rules, the panel recommends no change in the PEB adjudication.  There were 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.  

PD-2017-04959

XXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXX

	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

PD-2017-04959