RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX  	CASE:  PD-2017-06009
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O3, EOD Officer, medically separated for “low back pain” with a disability rating of 10%.  

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 – 20081020	VARD - 20090127	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain 	5243	10%	Intervertebral Disc Disease 	5243	10%	20081020	
Left Cubital Tunnel Syndrome	Not Unfitting 	Intermittent Cubital Tunnel Syndrome of the Left Upper Extremity	8599-8515	10%	20081020	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 2006 without specific injury or trauma.  A May 2008 MRI revealed grade I anterolisthesis of L5 on S1 with bilateral spondylolysis and exposed disc bulge at L5-S1 with neural foraminal narrowing.  Electrodiagnostic studies in June 2008 revealed right L5 radiculopathy.  The 2 June 2008 MEB NARSUM examination, 8 months prior to separation, noted complaints of low back pain with radicular symptoms.  During the 3 June 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported back pain and numbness and tingling in the right gluteus maximus and down the right leg.  Physical examination showed mild tenderness and spasms, but there was no evidence of abnormal gait or spinal contour.  Neurology examination was normal.  

Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) for the MEB on 5 August 2008, 6 months prior to separation, showed flexion of 80 degrees (normal 90) and combined ROM of 220 degrees (normal 240) with no appreciable change in ROM after three repetitions.  End of range pain was noted.  There was no tenderness, muscle spasm or guarding and the CI’s gait was normal.  At the 18 August 2008 acute care clinic examination, the examiner noted low back pain with radiating symptoms.  Tenderness and muscle spasms were noted on the “back.”  Straight leg raise testing was negative.  

The 7 October 2008 MEB NARSUM addendum, 4 months prior to separation, noted the right L5 radiculopathy did not meet retention standards.  The CI reported a sense of weakness in the right lower extremity when doing toe raises and reported he would bear weight primarily on the lateral aspect of the foot with exercise.  He reported shaking and giving out of the right leg with repetitious exercises including quadriceps extension, leg press, hamstring curls and toe raises.  Strength was normal, however on toe raise the CI shifted his weight to the lateral right foot.  Right calf circumference was 40 cm compared to the left of 40.5 cm, but thigh circumference measurements were equal.  

At the 20 October 2008 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported a gradual onset of back pain with numbness and burning sensation radiating down the right lower extremity.  Physical examination showed a normal gait with tenderness of the mid-thoracic spine and a negative straight leg raise test.  The ROM evaluation showed flexion of 90 degrees and combined ROM of 240 degrees with painful motion.  There was no increase in pain, weakness or fatigability with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS), citing thoracolumbar flexion of 80 degrees and combined ROM of 220 degrees.  The VA rated the back condition 10%, coded 5243, based on the STR, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The panel 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 combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB PT examination.  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 documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  The VA examination also supported a 10% for the presence of painful motion.  

The MEB determined radiculopathy failed retention standards and the profile specified nerve impingement.  The commander’s statement did not specifically reference radiculopathy.  Electrodiagnostic studies revealed right L5 radiculopathy, but the NARSUM addendum noted normal motor strength of the right lower extremity.  The panel considered the difference between right and left calf circumference, but agreed it was likely a normal variant, given no decrease in motor strength.   Although there was evidence of denervation in the needle testing, panel members agreed evidence of related muscle atrophy was not supported.  Additionally, physical examinations proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  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 of the back condition.  

Contended PEB Condition:  Left Cubital Tunnel Syndrome.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

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 contended left cubital tunnel syndrome, the panel recommends no change from the PEB determination as not unfitting.  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:  

AR20190009708, 

Dear XXXXXXXXXXXX:

	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.

Enclosure