RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201259 SEPARATION DATE: 20020929 BOARD DATE: 20130313 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SGT/E-5(77F/Petroleum Supply Specialist), medically separated for chronic back pain (LBP) due to lumbar degenerative disc disease (DDD). The CI injured his back while doing “gorilla” drills in February 2000. The CI did not improve adequately with conservative treatment 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 lumbar DDD IAW AR 40-501. The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB adjudicated the lumbar spine condition as unfitting, rated 10%, with application of the Defense Instruction (DoDI) 1332.39, Paragraph 20, page 2-1-8 and the AR 635-40, Appendix B-39. The CI appealed to the Formal PEB (FPEB) [USAPDA], but withdrew his request, and was medically separated with a 10% disability rating. CI CONTENTION: The CI states: “My rating for chronic lumbar pain due to degenerative disc disease should have been rated higher by the Army since the VA gave me 40% rating.” 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. 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 PEB – Dated 20020628 VA (3 Mos. Post-Separation) – All Effective Date 20020930 Condition Code Rating Condition Code Rating Exam Chronic Back Pain, Due to Lumbar DDD 5299-5295 10% Chronic Lumbar Pain Due to DDD 5295 40% 20021230 .No Additional MEB/PEB Entries. R Shoulder Impingement w/DJD of the Acromioclavicular 5203 10% 20021230 L Shoulder Impingement w/DJD of the Acromioclavicular 5203 10% 20021230 Neuritis R Upper Extremity to Include Hand 5203-8615 10% 20021230 Neuritis L Lower Extremity 5295-8520 10% 20021230 0% X 0 / Not Service-Connected x 4 20021230 Combined: 10% Combined: 60%* *Includes bilateral factor of 2.7%. ANALYSIS SUMMARY: The Board notes the current Department of Veterans Affairs (DVA) rating listed by the CI for his service-connected unfitting condition, but must emphasize that its recommendations are premised on severity at the time of separation. The DVA ratings which it considers in that regard are those rendered most proximate to separation. The Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the DVA. Lumbar Spine Condition. The CI sought care for LBP after an auto accident in 1997 which was treated conservatively as a low back strain. He sought care once in 1999 for LBP and then in February 2000 sought care consistently for an increase in pain after gorilla drills and fireman's carry training. He noted some minimal radicular-type symptoms which traveled into his mid posterior hamstring region, the left side being greater than the right side. He attempted improvement of these symptoms through chiropractic care, physical therapy, massage, transcutaneous electrical nerve stimulation (TENS) unit, and medications, all of which had provided little to no improvement. He was referred to neurosurgery and subsequently had a discogram performed. The discogram produced no pain, but a large defect in L4-5 annulus was precluded as pressurizing the disc was interpreted as most likely the symptomatic level. Neurosurgery thus diagnosed likely discogenic LBP and educated him on his management options, in the meantime recommended a P3 permanent profile and referral for a MEB. There was one entry 2 months prior to separation for an acute flare in back pain that was treated conservatively in the emergency room and he was release with 72 hour bed rest. This was the only record in evidence for physician prescribed bed rest. The permanent profile limitations included no running, jumping, stooping or crawling, no physical training or testing, and no driving or riding in tactical vehicles. The profile allowed lifting up to 20 pounds, marching up to a mile, walking, bicycling, and swimming at own pace and distance, able to wear helmet, and carry and fire a rifle. The commander’s statement corroborated the medical condition and profile limitations with no additional remarks. At the MEB exam, the CI reported the LBP and associated radicular symptoms were increased with walking as well as with sitting for a prolonged period of time. The MEB physical exam demonstrated: full range-of-motion (ROM) with pain, tenderness in the bilateral sacroiliac areas to deep palpation, negative bilateral straight leg raise (SLR), (provocative test for disc disease), and normal bilateral lower extremity neuromuscular findings. At the VA Compensation and Pension (C&P) exam after separation, the CI reported constant, extreme pain and stiffness in the low back, with pain that radiated down the left leg which precluded him from taking out the trash, push a lawnmower, climbing stairs or gardening. He reported 8 to 10 weeks of lost time from work as his back required bed rest and treatment by a physician however he did not report the frequency for which he sought care. The C&P exam demonstrated: decreased painful flexion ROM of 75 degrees (90 normal), tenderness to palpation of the spinous processes of L1 through L4, radiating pain on movement down the left lower extremity, no muscle spasm, normal posture, negative bilateral SLR, decreased sensation down the left lower extremity and foot with no motor involvement, otherwise normal neuromuscular findings of the bilateral lower extremities and no Deluca observations. X-rays revealed decreased disc spaces at LI-L2, L4-L5, and L5-S1. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose the same coding options for the condition, and based their rating recommendations IAW 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were modified on 23 September 2002 to add incapacitating episodes (5293, Intervertebral disc syndrome), and then were changed to the current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below. 5292 Spine, limitation of motion of, lumbar: Severe ………………………………………………………..……….………….... 40 Moderate …………………………………….……………….…….…………...…. 20 Slight ………………………………………………………..…………………...….10 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with: sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief ………………..….……….….. 60 Severe; recurring attacks, with intermittent relief ……………..…….………..….…40 Moderate; recurring attacks ……………………………….……………............…...20 Mild ……………………………………………………………..…………….….…10 Postoperative, cured …………………………………….………..……………....…..0 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 osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion …………………..…... 40 With muscle 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 The PEB’s DA Form 199 reflected application of the Defense Instruction (DoDI) 1332.39, Paragraph 20, page 2-1-8 and the AR 635-40, Appendix B-39 for rating, but its 10% determination was consistent with §4.71a standards. The VA assigned a 40% rating for lumbosacral strain with osteoarthritic changes, or narrowing or irregularity of joint space which is inconsistent with §4.71a standards as there is no evidence to this fairly specific rating criteria as noted above. The Board considered the 20% rating for 5295 which is also fairly specific as defined above. The CI’s condition clearly did not meet the criteria for a rating higher than 10% under the 5295 code based on either the MEB or the VA examinations. The Board also considered a rating under the 5292 code for limitation of spine motion and agreed the normal painful ROM documented by the MEB and mildly impaired VA exam would justify a “slight” 10% rating under this code. The Board next considered a rating under the 5293 code for intervertebral disc syndrome which fit with the CI’s underlying pathology. The 20% rating for ‘moderate, recurring attacks’ could not be justified under 5293 based on lack of objective evidence of recurring incapacitating episodes which resulted in physician prescribed bed rest in the MEB exam, the post separation VA exam, nor the CI’s prior to separation treatment records. The Board finally considered whether additional rating could be recommended under a peripheral nerve code for the residual sciatic radiculopathy at separation. Firm Board precedent requires a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine cases. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications; and no motor weakness is in evidence. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition. 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. As discussed above, PEB reliance on the Defense Instruction (DoDI) 1332.39, Paragraph 20, page 2-1-8 and the AR 635-40, Appendix B-39 for rating lumbar spine condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic Back Pain, Due to Lumbar DDD 5299-5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120716, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxx) 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxx, AR20130006129 (PD201201259) 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 and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)