RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200935 SEPARATION DATE: 20031031 BOARD DATE: 20130125 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E-5 (31U20/Signal Support Systems Specialist), medically separated for chronic low back pain (LBP). The condition began in December 2001 as a consequence of heavy lifting. He did not respond adequately to operative and rehabilitative treatment and was unable to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP with left lower extremity radiculitis to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB adjudicated the chronic LBP post L4-5 discectomy condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI non-concurred the determination, but waived a formal appeal. The United States Army Physical Disability Agency (USAPDA) concluded the case was properly adjudicated, and administratively corrected the DA Form 199. The CI was then medically separated with a 10% disability rating. CI CONTENTION: “Because I Received surgery also release Naval Doctor said I needed. LOD Report and I was on Med Hold with a T-3 profile. A 20% rating was rendered, severance pay was issued. I was medically discharged not retired. I feel I should have been retired.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The chronic LBP post L4-5 discectomy condition as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is addressed below. The remaining conditions rated by the VA at separation are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service Admin PEB – Dated 20030827 VA (~4 Mos. Post-Separation) – All Effective Date 20031101 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain Post L4/L5 Discectomy 5293-5299- 5295 10% Herniated Nucleus Pulposus L4-5 5299-5243 20%* 20040220 Degenerative Disc Disease L3-5 5242 10% 20040220 .No Additional MEB/PEB Entries. Degenerative Changes, Cervical Spine 5242 10% 20040220 Bilateral Pes Planus 5276 10% 20040220 Right Wrist Carpal Tunnel Release 8515 10% 20040220 0% X 2 20040220 Combined: 10% Combined: 50%** *Rating increased to 100% effective 20040517, code changed to 5242; decreased to 20% effective 20040801, then increased to 40% effective 20051110. **Final combined rating 60% from 20050110 includes non-PEB conditions. ANALYSIS SUMMARY: Chronic Low Back Pain Condition. Subsequent to the injury in December 2001, discovery of a herniated nucleus pulposus (HNP) led to L4-5 microdiscectomy in April 2002. Post-operatively, lower back pain continued despite physical therapy, epidural steroid injections (ESI) and narcotic pain medication. Magnetic resonance imaging (MRI) showed degenerative disc disease (DDD) of L3 through S1, slight thickening of the left L5 nerve root (possibly indicating mild radiculitis), and mild facet hypertrophy and mild bilateral foraminal stenosis at L4-5. There was no evidence of recurrent disc protrusion. There were three range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM Neurosurg ~12 Mos. Pre-Sep Ortho ~2 Mos. Pre-Sep VA C&P ~4 Mos. Post-Sep Flexion (90° Normal) 60° 30° “Declined” Ext (0-30) “Full” -- 10° R Lat Flex (0-30) “Reduced” 15° L Lat Flex 0-30) 15° R Rotation (0-30) -- L Rotation (0-30) -- Combined (240°) -- -- -- Comment Ambulates forward flexed +Tenderness +Painful motion §4.71a Rating 20% 40% 20% or 40% (VA 20% + 10%) An evaluation by a neurosurgeon on 8 October 2002, over 12 months prior to separation and 6 months after surgery, reported back pain of 4-5 severity on a 10 point scale. He complained of significant residual numbness and intermittent radiating pain in the left lower extremity. Physical exam revealed normal lower extremity muscle strength but diminished sensation in the left lower extremity. Straight leg raise (SLR) was negative for radiculopathy. An orthopedic examiner approximately 6 months prior to separation reported that 60% of the CI’s pain was in the left leg and 40% in the back. He was observed to be in moderate distress and listed to the side while standing. Decreased flexion and lateral bending were present. Multiple areas of tenderness were also noted. An orthopedic follow-up 5 days later observed a normal gait. Paravertebral lumbar muscle tenderness and spasm were present. Conflicting examination findings included a negative distracted SLR, LBP on axial loading, pain with hip rotation, exaggerated response to light touch and inconsistent paravertebral muscle tenderness. Lower extremity strength, sensation and deep tendon reflexes (DTR) was normal. At the narrative summary (NARSUM) exam 5 months prior to separation, the CI denied lower extremity paresthesias or weakness. Physical examination revealed a normal gait and spinal contour. There was mild paravertebral muscle tenderness and spasm. Lower extremity strength, sensation and DTRs were normal. ROM was not mentioned. SLR testing was inconsistently positive. At the MEB exam, the CI reported an inability to bend, stand longer than 15 minutes or lie down due to lower back problems. At a primary care evaluation on 22 May 2003, the CI complained of back pain radiating to the left leg, and leg numbness and weakness. The CI appeared uncomfortable. A normal gait and stance were present, and there was no lumbar spine tenderness or muscle spasm. Neurologic examination of the lower extremities was normal. At a clinic visit for refill of narcotic pain medication 3 months prior to separation, the examiner noted an “altered gait.” A final orthopedic follow-up examination 2 months prior to separation noted the CI to be in moderate distress with generalized tenderness throughout the lower lumbar spine. At the VA Compensation and Pension (C&P) exam 4 months after separation, the CI reported pain that radiated down the left leg. Left leg weakness occurred “at times.” Difficulty bending occurred “sometimes.” He could walk a half mile, and had to stop due to foot pain. He could not run. Physical examination revealed an antalgic gait, although it was not specified if this was due to foot or back pain. He was able to tandem walk. The CI needed assistance removing socks. A well-healed lumbar surgical scar was present. Spinal contour, tenderness and spasm were not mentioned. The CI declined to perform forward flexion because pain was “too severe.” Left hip flexion was full and extension was to 45 degrees (normal to 20 degrees). Right hip motion was present but documented in an unclear manner. SLR testing was negative for radiculopathy, but caused pain in the lower back; neurologic testing of the lower extremities was normal. Another C&P examiner on the same date observed a normal gait and posture. The Board directs attention to its rating recommendation based on the above evidence. It is noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the time of those proceedings; but, a change to the current §4.71a criteria (General Rating Formula for Diseases and Injuries of the Spine) occurred on 26 September 2003, in advance of the date of separation. The Board, IAW DoDI 6040.44, must apply the latter criteria to its recommendation. The PEB assigned a 10% rating under the old 5295 code (lumbosacral strain) combined with a 5293 code (intervertebral disc syndrome). Conversely, the VA assigned a 20% rating under the new intervertebral disc syndrome code (5243) and a separate 10% rating under the 5242 code (degenerative arthritis of the spine). The 60 degrees of flexion supported a 20% rating (i.e. flexion greater than 30 degrees but not greater than 60 degrees), but this exam was a year prior to separation. The 30 degrees of flexion two months prior to separation supported a 40% rating (i.e. flexion of 30 degrees or less), but this measurement and the absence of flexion measurement at the VA exam were considered in the context of conflicting data. For example, the VA examiner reported an antalgic gait and the need to assist with removal of socks, yet another VA exam on the very same day reported a normal gait and posture. The ability to walk a half mile, and the findings of hip flexion and ability to tolerate an SLR test also seemed inconsistent with a complete inability to flex the lumbar spine. The Board also debated the findings by the orthopedic examiner 6 months prior to separation and by the NARSUM examiner suggestive of non-physiologic pain. The Board therefore agreed that the evidence presented is not consistent with the 40% rating criteria, and furthermore concluded that under the new spine rules (that are grounded in ROM measurements), a 10% rating is not supportable. Board members ultimately agreed that the clinical picture at the time of separation most closely approximated the 20% rating. The Board also concluded that assigning two separate ratings for the lumbar condition is prohibited under §4.14 (avoidance of pyramiding). The Board further deliberated if additional disability was justified for the history of left lower extremity pain and numbness. Except for one exam showing diminished sensation, all examinations otherwise recorded normal neurologic findings, including muscle strength. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. There is no evidence in this case of functional impairment attributable to peripheral neuropathy. While the CI experienced radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” The Board therefore concludes that additional disability was not justified on this basis. The Board finally considered whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. However, there was no evidence that the minimum rating under that formula was met. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back pain condition, coded 5243 under the new VASRD spine rules. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Low Back Pain 5243 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120613, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting President Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxx, AR20130006040 (PD201200935) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)