RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX CASE: PD1201279 BRANCH OF SERVICE: ARMY BOARD DATE: 20130410 SEPARATION DATE: 20030603 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Guard SPC/E-4 (13E/Fire Direction Control) medically separated for chronic low back pain (LBP). The back condition began in 2001 and was treated conservatively and reportedly resolved. He reinjured his back while lifting a heavy box and reported pain radiating to the left lower extremity. The injury resulted in surgery but he continued to have pain during strenuous activities or heavy lifting. He could no longer tolerate Kevlar or perform other soldier duties due to back pain. The condition could not be adequately rehabilitated 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 LBP condition, characterized as “Lumbar spine: herniated nucleus pulposus, s/p disc surgery.” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded mild high frequency hearing loss for PEB adjudication. The Informal PEB (IPEB) adjudicated LBP as unfitting, rated 10%. The hearing loss was determined to be not unfitting, not rated. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “I was treated for a ruptured disc compressing my S1 nerve root on the left side that I suffered during a training accident. I received a 10% disability rating from the Army which seemed quite low for my condition. Veterans Affairs has rated this same condition as 40% disabling as well as Left Lower Extremity Radiculopathy at 10% which was caused during the same training accident.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. Ratings for unfitting conditions will be reviewed in all cases. The Service rated, unfitting LBP condition meets the criteria prescribed in DoDI 6040.44 for Board 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 Board for Correction of Military Records. RATING COMPARISON: Service Admin IPEB – Dated 20021212 VA - (6 days Post-Separation) Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain 5295 10% S/P Laminectomy and Diskectomy L-5, S1 w/DDD 5292 40%* 20030609 LLE Radiculopathy Associated w/ S/P Laminectomy and Diskectomy L-5, S1 w/DDD 8599-8520 10% 20030609 Mild High Frequency Hearing loss Not Unfitting Bilateral High Frequency Hearing Loss Not Service Connected (NSC) No Additional MEB/PEB Entries Other x 1 20030609 Combined: 10% Combined: 50% Derived from VA Rating Decision (VARD) dated 20030627 (most proximate to date of separation [DOS]) *Increased to 100% from 20040413 and reduced back to 40% 20040701(VARD 20040428) ANALYSIS SUMMARY: Low Back Pain (LBP). In 2001, the CI complained of LBP associated with left leg pain. Magnetic resonance imaging (MRI) showed moderate, left-sided disc protrusion at L5-S1, compressing the left S1 nerve root. In December 2001, he underwent laminectomy and discectomy at L5-S1. After surgery he reported some improvement in his radicular symptoms. However, he continued to have problems with LBP, and an MEB was initiated. The MEB physical exam in September 2002, 9 months prior to separation. There was diffuse tenderness to palpation (TTP) of the lumbosacral spine, without palpable spasm or visible deformity. Straight leg raise (SLR) was negative. Deep tendon reflexes (DTRs) were normal on the right, but ankle jerk was absent on the left. Motor strength testing revealed mild weakness of left ankle dorsiflexion and plantar flexion. However, muscle strength overall was quite good. He was able to heel and toe walk without difficulty. Lumbar range-of-motion (ROM) was measured and is summarized in the chart below. In June 2003, 6 days after separation from service, the CI had a VA Compensation and Pension (C&P) exam. He was working as a corrections officer for the county sheriff. He reported difficulty with running, jumping, and stair-climbing. They physical exam of the back revealed some tenderness and paravertebral muscle spasm. The left ankle jerk reflex was absent. Muscle mass in the lower extremities was normal. Once again, ROM was measured and is summarized below. Lumbar ROM MEB ~ 8 mos. Pre-Sep (20021030) VA C&P ~ 6 days Post-Sep (20030609) Forward Flexion 80° 60° Extension 25° 30° Right Lat. Flexion 30° 25° Left Lat. Flexion 30° 25° Right Rotation 35° 25° Left Rotation 35° 25° The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The PEB coded the condition 5295 (lumbosacral strain) and rated it 10%. The VA used diagnostic code 5292 and rated it 40%. The Veterans’ Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were changed in September 2003. The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service. Based on the evidence in the treatment record, the Board unanimously agreed that the CI’s LBP condition was best described as “slight.” There was insufficient evidence in the treatment record to support classifying the LBP condition as “moderate” or “severe.” IAW VASRD §4.71a, the Board unanimously recommends a rating of 10% for the LBP condition. The Board tried to find a path to a higher rating using other codes which could be applied to the LBP condition. The other VASRD codes that were considered did not result in a rating higher than 10%, since the treatment record did not show evidence of a significantly disabling back abnormality which would justify a rating higher than 10%. The Board then considered the matter of lumbar radiculopathy. The VA exam was the exam most proximal to separation. On that examination, muscle mass was felt to be normal. After reviewing all of the information in the treatment record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. Therefore, his radiculopathy condition was not unfitting at the time of separation from service. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP 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. In the matter of the LBP condition, the Board unanimously recommends no change in the PEB adjudication, IAW §4.71a of the VASRD that was in effect at the time of separation. 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 Low Back Pain, following back injury 5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120627, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009501 (PD201201279) 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 xxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)