RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200471 SEPARATION DATE: 20030504 BOARD DATE: 20130220 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard/Reserve SSG/E-5 (92Y20/Unit Supply Specialist), medically separated for chronic low back pain (LBP). The chronic LBP condition could not be adequately rehabilitated for the CI to improve to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. The CI was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP, chronic S1 radiculopathy to the Physical Evaluation Board (PEB) for adjudication. The PEB adjudicated the chronic LBP condition as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability rating. CI CONTENTION: “Conditions rated by the Physical Evaluation Board (PEB) were more severed (sic) than originally rated by (PEB). PEB originally rated both conditions: (post L-5 S-I DISECTOMY and RIGHT S1 RADlCULOPATHY) at 20%. The Veterans administration Rated (post L-5 S-l D1SECTOMY at 20%, and the RIGHT S1 RADICULOPATHY at 10% on their first rating dated June 14 2004. Consequently, On a rating dated Ju1 21st, 2005, the Veterans administration increased the Right Lower extremity S1 Radiculopathy to a 20%, and the L-5 S-1 Discectomy at 40%. (See Ratings attached)” 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 condition as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below. The other requested conditions 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 IPEB – Dated 20021218 VA (10 Mos. Post-Separation) – All Effective Date 20030505 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain s/p Diskectomy w/ Radiculolopathy 5299-5295 20% DDD Lumbar Spine s/p Discectomy 5242 20%* 20040306 Radiculopathy, Rt Lower Extremity 8520 10% 20040306 .No Additional MEB/PEB Entries. Other VA Conditions 20040306 Not Service-Connected x 9 20040306 Combined: 20% Combined: 90% *VA rating for back under current §4.71a guidelines; increased to 40% effective 20050404 ANALYSIS SUMMARY: Chronic Low Back Pain Condition. The MEB narrative summary (NARSUM), dated 8 November 2002, noted chronic LBP radiating down the right lower extremity since the CI sustained a back injury in November 2000 while lifting a heavy object. The CI returned to duty, but continued to complain of back pain aggravated by standing, walking, repeated bending, running and climbing stairs. Magnetic resonance imaging (MRI) demonstrated a herniated disk and the CI subsequently underwent surgery (L5-S1 discectomy) in December 2001. Electrodiagnostic investigation in October 2002 evidenced right S1 radiculopathy. The right leg pain increased after surgery and conservative treatment was not effective, subsequent neurosurgical consult recommended lumbosacral fusion. The CI declined the option and was referred to the MEB, and was unable to perform basic tasks required by his MOS. The MEB physical exam noted the lumbar spine range-of- motion (ROM) to be reduced (flexion 45 degrees, extension 20 degrees, right lateral flexion 20 degrees) and associated with pain in the low back and right leg. The Achilles reflex was slightly reduced on the right side and patellar reflexes were normal bilaterally. Pinprick and light touch sensation were intact and symmetric from L2-S1. Muscle strength was normal for hip and leg muscles. Plantar flexion of the right foot could not be assessed accurately secondary to pain. Straight leg raise (SLR) increased numbness on the right, reverse SLR was negative. The gait was described as tandem with a slight limp on the right side. Neurosurgical consultation on 13 January 2003 documented 20% reduction in flexion, 30% reduction in extension, and 15% reduction in rotation. There were examination findings of right sided radiculopathy including positive SLR, slight weakness of plantar flexion, and some decreased sensation. The neurosurgeon noted an MRI dated 29 November 2002, showing degenerative disc disease (DDD), epidural fibrosis affecting the right S1 nerve root, and recurrent disc displacement and offered additional surgery. At the VA Compensation and Pension examination 27 February 2004, 10 months after separation, the lumbar spine ROM was further limited to 30 degrees forward flexion, 10 degrees back extension, 20 degrees lateral rotation and bending. SLR was negative. Examiner diagnosed the CI with degenerative disc disease of the lumbar spine status post discectomy with residual sciatica on the right lower extremity. A second exam performed in March 2004 noted pain radiating down the right lower extremity into the posterior aspect of the tight calf and heel. The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2003 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; 5295 Lumbosacral strain). The PEB rated the CI’s low back condition at 20% coded 5295 (lumbosacral strain) citing presence of the associated right radiculopathy. The VA under the current VASRD guidelines which became effective after the CI’s separation from service, rated separately the thoracolumbar condition 20% based on the moderate limitation of motion (5242) and the right lower leg radiculopathy 10% considering mild incomplete paralysis below the knee. The Board considered the rating under the VASRD diagnostic code 5292, limitation of lumbar motion. The Board agreed that the ROM documented at the time of the MEB examination supported a 20% rating, moderate, under the VASRD diagnostic code 5292 in effect at the time of separation. The CI had a chronic condition, and the preponderance of evidence more nearly approximated the moderate limitation than the severe. The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293, however there were no incapacitating episodes to support a minimum rating under this code. The Board also considered the rating under the code, 5295, lumbosacral strain but concluded the preponderance of evidence did not support a rating higher than the 20% rating. There was characteristic pain on motion and muscle spasm but no other required criteria for a 40% disability rate. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had a herniated disc with radicular pain treated with surgery. He had persisting right sided radicular pain following surgery related to scarring and recurrent disc disease. Examinations indicated normal strength. There was a slight right limp and SLR produced radiating pain. The presence of functional impairment with a direct impact on fitness is the key determinant in the decision to recommend any condition as additionally unfitting. Therefore the critical decision is whether or not a significant motor weakness impacted MOS activities. There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing. The Board therefore concludes that additional disability rating is not justified on this basis. 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 chronic 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. In the matter of the chronic LBP 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 Low Back pain 5299-5295 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120612, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director 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 xxxxxxxxxxxxxxxxxx, AR20130005357 (PD201200471) 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)