RECORD OF PROCEEDINGS	
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX 	CASE:  PD-2017-05203
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Field Artillery Firefinder Radar Operator, medically separated for “chronic low back pain” and “right S1 radiculopathy with scar tissue,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  No specific contention was made.  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 - 20070725	VARD - 20080820	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	L4-5 Degenerative Joint Disease	5242	20%	20080319	
Right S1 Radiculopathy… 	8799-8720	10%	Radiculopathy Left Lower Extremity	8521	10%	20080319	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP) and Right S1 Radiculopathy.  The PEB adjudicated the LBP and right S1 radiculopathy conditions as separately unfitting; however, the medical facts are discussed together for clerical brevity, with separate rating discussions following.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent L4-5 and L5-S1 discectomies in March 2006 for a large herniated disc at L5-S1, with a free fragment displacing the S1 nerve root, and a central disc herniation at L4-L5 that impinged the L5 nerve root.  A week after the surgery, the CI developed a deep venous thrombosis (DVT) in the right lower extremity (RLE) and was placed on anticoagulation medication for 6 months.  While he reported improved back pain post-operatively, he had persistent numbness of the RLE and the bottom of the second through fifth toes.  On 2 August 2006, an MRI showed scar tissue around the S1 nerve root, which did not appear to be causing significant compression.  He was noted to have weakness of the calf muscles and everters of the foot as well as loss of ankle reflex.  

At a neurosurgery consult on 12 September 2006, the CI reported “little, if any” pain, but persistent numbness and weakness in the S1 distribution.  Physical examination showed “reasonable” range of motion (ROM) of the spine with negative straight leg raise testing to elicit radicular symptoms and no tenderness of the sciatic notch.  There was weakness of the calf muscles without atrophy, weakness of everters of the foot, loss of the ankle reflex, and numbness in the S1 dermatome, and he was unable to toe walk on the right side.  The neurosurgical opinion was that the CI likely had S1 nerve root damage from surgery.  In November 2006, the CI reported RLE swelling for 2-3 weeks and he was evaluated for recurrent DVT, compartment syndrome, and arteriovenous formation (a rare complication) following surgery, all of which were negative.  

The 13 November 2006 MEB physical therapy (PT) ROM study, 10 months prior to separation, showed thoracolumbar flexion to 85 degrees and a combined ROM of 230 degrees after three repetitions, with limitations due to pain.  There was L4-S1 tenderness but spinal curvatures were normal.  His right foot problem was noted to cause more weight bearing on the left side, and he had limited push-off with the right foot and used his hip to bring the leg forward during the swing phase of gait.  During the MEB examination (recorded on DD Forms 2807-1 and 2808) the next day, the CI reported right foot numbness and weakness.  The examiner noted that he was unable to bear full weight on the RLE or toe walk.  The 3 January 2007 MEB NARSUM examination, 8 months before separation, noted complaints of constant RLE numbness and occasional pain.  No physical examination was performed.  

In June 2007, the PEB requested additional information and the CI was re-evaluated by PT on 10 July 2007, 2 months prior to separation.  He reported gait problems, pain from the right posterior thigh to the knee, and posterolateral leg burning.  He also had numbness of the right foot and second through fifth toes with weakness.  Physical examination showed an abnormal gait but no use of an assistive device.  There was no thoracolumbar tenderness, and back ROM was described as “20% loss of motion with 7% loss of flexion,” without painful motion and no affect from repetitive motions.  Straight leg raise testing was negative bilaterally, and right ankle reflex was decreased.  The CI was able to balance on the left leg for 8 seconds and on the right leg for 3 seconds.  Right ankle dorsiflexion was to 10 degrees (normal 20) with strength graded 5/5, and plantar flexion to 30 degrees (normal 45) with strength graded 4/5.  

The panel noted apparent inaccurate statements of fact in the 19 March 2008 VA Compensation and Pension (C&P) examination, 6 months after separation, in which the VA examiner stated the CI had not sought “medical care privately or through the VA regarding any of his condition since many years now, discharged from service.”  However, the CI had been discharged on 11 September 2007, and within the examination findings, the VA provider cited a visit to the VA in January 2007 for care and also noted the CI was seen routinely for management of anticoagulation due to a recurrent DVT after separation.  Additionally, the VA history recorded complaints of back pain that was “sharp, agonizing, severe, continuous, throbbing, burning, and shooting” and aggravated by any turning of the back, as well as RLE numbness but no endorsement of any weakness.  The panel noted these complaints were contrary to STR reports of very little or no pain, with residual RLE numbness and weakness.  With this in mind regarding validity, the remainder of the C&P examination noted CI reports of back pain worsened over the previous few months.  This caused difficulty in his job in a retail store where he had worked for several years, and was required to do heavy lifting and constantly ambulate for 10-12 hours a day.  He reported daily flare-ups with routine activity or movement, but denied incapacitating episodes or lost time from work.  He also reported right leg pain and swelling intermittently since his blood clot, but denied using any assistive devices for ambulation.  Physical examination showed a normal gait, and no spinal tenderness, muscle spasm, or guarding.  There was no abnormal spinal contour, and lower extremity strength and reflexes were normal.  Sensation in the RLE was decreased compared to the left.  Thoracolumbar ROM tests showed flexion of 90 degrees and a combined ROM of 240 degrees, without painful motion.  There was no additional loss of ROM with repetition.  

The panel first directed attention to its rating recommendation for the chronic LBP based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome).  The VA increased the rating of the low back from an earlier 10% rating to 20%, coded 5242 (spinal arthritis), based on the March 2008 C&P examination, citing consideration of “greater limitation of motion due to pain on use, including during flare ups.”  As noted above, due to discrepancies within the C&P examination and the fact that it was performed 6 months after separation, the panel assigned greater probative value to the service medical evidence, including the MEB examination and the July 2007 PT evaluation which was the most proximate to separation.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), and localized tenderness as recorded on the MEB PT examinations in November 2006 and July 2007.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate 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 back condition.  

The panel next directed attention to its rating recommendation for the radiculopathy based on the above evidence.  The PEB rated the right S1 radiculopathy 10%, analogously coded 8799-8720 (neuralgia of the sciatic nerve), citing decreased sensation, burning, weak plantar flexion and an abnormal gait.  The VA did not service-connect the RLE radiculopathy based on the C&P examination, citing “the evidence does not show compensable symptomology…and the examiner does not offer a clinical diagnosis related to the claimed condition.”  Panel members agreed there was evidence of mild incomplete paralysis of the right sciatic nerve for a 10% rating based on the presence of pain, decreased sensation and mild weakness of plantar flexion at the PT examination in July 2007, with moderate limited ROM of the ankle noted, including 30 degrees of plantar flexion.  Although clinical examinations noted an abnormal gait, the panel judged that the mild weakness did not rise to the “moderate” threshold based on no requirement for an assistive device or brace for ambulation.  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 right S1 radiculopathy.  

BOARD FINDINGS:  In the matter of the chronic low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right S1 radiculopathy 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.  

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Dear XXXXXXXXXXXXXXX

	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.