RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX CASE: PD1201587 BRANCH OF SERVICE: ARMY BOARD DATE: 20130411 SEPARATION DATE: 20020903 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4(74B/COMPUTER SPECIALIST) medically separated for a lumbar spine condition due to lumbar degenerative disc disease (DDD). The CI’s back pain began during basic training in 1994 when she was told she had scoliosis. She was treated conservatively and symptoms did not exacerbate until the birth of her third child. Despite surgery, the lumbar spine condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The lumbar spine condition, characterized as chronic low back pain (LBP) secondary to DDD of the lumbar spine, and status post (s/p) left L5-S1 laminectomy and discectomy for lumbar herniated nucleus pulposus (HNP), was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) combined the two MEB conditions and adjudicated chronic LBP due to lumbar DDD, s/p L5-S1 laminectomy and discectomy as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: The CI writes: “A low back surgery was performed by military leaving soldier permantly disabled—Drs told soldier to return to Full duty after surgery which reinjured soldier to the point of medical discharged. Soldier was push away from Drs early on when treatment & prevention could have been performed to possibly avoid surgery in the first place. Medical experts confirm that adjustments & stretches could have avoided surgery & discharge. Soldier wanted a career out of Army—was in almost 10 yrs-hoped for 20. Entire life was altered because of surgery & wrong return to duty after. I still cannot live a normal life—need help with housework & job performance severely hindered by disability & 3 surgeries.” The CI made additional comments in remarks block of the application which the Board took into consideration. 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. The rating for the unfitting back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 respective Service Board for Correction of Military Records. The Board acknowledges the CI’s opinion that a medical error contributed to her disability. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for Correction of Military Records and/or the United States judiciary system. RATING COMPARISON: Service IPEB – Dated 20020514 VA - (2 Mos. Post-Separation) Condition Code Rating Condition Code Rating Exam CHRONIC LOW BACK PAIN DUE TO LUMBAR DDD, S/P L5-S1 LAMINECTOMY AND DISCECTOMY 5299-5295 10% DDD, LUMBAR SPINE, S/P L5-S1 LAMINECTOMY AND DISCECTOMY 5293- 5292* 20% 20021107 No Additional MEB/PEB Entries Other x 0 20021107 Combined: 10% Combined: 20% Derived from VA Rating Decision (VARD) dated 20030103 (most proximate to date of separation [DOS]). * Code changed to 5243 by VARD of 20100206. ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that 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 Department of Veteran Affairs operating under a different set of laws. The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were updated 23 September 2002 for code 5293 (incapacitating episodes), and then changed to the current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on range-of-motion (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. VASRD normal ROM values were not in effect prior to 26 September 2003, and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately. For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below. 5285 Vertebra, fracture of, residuals: With cord involvement, bedridden, or requiring long leg braces 100 Consider special monthly compensation; with lesser involvements rate for limited motion, nerve paralysis. Without cord involvement; abnormal mobility requiring neck brace (jury mast)............................................ 60 In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. 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 osteoarthritic 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 Chronic Low Back Pain. The narrative summary (NARSUM) indicated chronic radicular LBP continued following L5-S1 left laminectomy and diskectomy in May 2001 (16 months prior to separation). At the MEB exam, the CI reported LBP with chronic radiation into the left leg and intermittent into the right leg. She noted some paresthesias of the top of the left foot greater than the right foot. The MEB physical exam noted full active ROM of the spine to flexion, extension, and lateral bending. The left lower lumbar area was tender. The motor (5/5) and sensory exams were normal, and the scar was well healed. The left Achilles tendon reflex was decreased to 1/4 with all other lower extremity reflexes symmetric and normal at 2/4. Magnetic resonance imaging (MRI) of the LS-spine showed no recurrent herniated disk, but did show a possible lateral recess stenosis on the right. Electromyogram (EMG) and nerve conduction velocity studies were normal. At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported continued lower back pain with “legs tingle and ache and go numb in the evenings.” She frequently had pain that required her to stop what she was doing. Exam stated “Range of motion - she can forward flex and the fingers touch the floor without difficulty, which is about 65 degrees. She can extend approximately 25 degrees. Right lateral bending is approximately 25-30 degrees. Left lateral bending is approximately 25-30 degrees. I don't see any significant pain with motion. … The strength is decreased on the left leg when compared to the right.” Sensory and reflex exams were normal. Radiographs demonstrated sacralization of L5 and narrowing of the L4/5 disc space. VA records indicate additional back surgeries in January 2009 and January 2010 for increased pain in the lower back and left lower extremity; with subsequent VA 20% rating for lumbar radiculopathy, left lower extremity (8799-8720) effective February 2009. The Board directs attention to its rating recommendation based on the above evidence. The PEB rating of 10% was analogous to 5295 (lumbosacral strain), and the 10% criteria is “With characteristic pain on motion.” The VA 20% rating was coded 5293-5292 (Intervertebral disc syndrome and limitation of lumbar spine motion) with the rating decision indicating 20% granted for “moderate limitation of the lumbar spine.” The remote additional surgeries and increased symptoms were considered post-separation worsening, and not indicative of the CI’s disability picture proximate to separation. The Board noted that current VASRD thoracolumbar normal ROMs were not in effect at the time of separation. Lumbar ROM normal values were not specified by the VA examiner; however, historic norms were from forward flexion of 60 degrees to 90 degrees depending on measurement technique, with lateral flexion from 25 degrees to 30 degrees as normal. The Board noted the VA examiner’s description included “the fingers touch the floor without difficulty” which did not support a moderate limitation of lumbar ROM. The Board considered rating under 5293 for radicular symptoms, despite normal electrophysiologic testing and deliberated if symptoms more nearly met the “mild” (10%) criteria or the “moderate; recurring attacks” (20%) criteria. The Board considered the absent left ankle reflex noted in the exam and the left lower extremity weakness in the VA exam with consideration of the radicular pain symptoms portrayed a disability picture closer to that envisioned by the 20% 5293 rating criteria. 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 low back condition, coded 5295-5293. 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 low back condition, the Board unanimously recommends a disability rating of 20%, coded 5295-5293 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 her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Low Back Pain Due to Lumbar DDD, S/P L5-S1 Laminectomy and Discectomy 5295-5293 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120529, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009598 (PD201201587) 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 xxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)