RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201336 SEPARATION DATE: 20030415 BOARD DATE: 20130315 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman), medically separated for chronic low back pain (LBP), which did not improve after surgery, and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or to satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the back pain condition as unfitting, rated 20%. The CI made no appeals, and was medically separated with a 20% disability rating. CI CONTENTION: “At the time of the Medical Boards decision I was informed by the administrative nurse that the board had made a mistake and should have awarded a rating of 30% or more. She based this on the evidence they presented in the findings and she stated they missed the whole point as to why I was at the board with a back injury. She also adamantly suggested I appeal this decision but I declined for personal reasons. I have had several Doctor and ER visits and MRI’s completed since my discharge in 2003 and they show an injury that is gradually getting worse over time. If I had appealed and the decision overturned I would have been unemployed, in debt and have post privileges. If I left the decision alone I would receive $60,000 for my years of service, still be unemployed but not in debt and no post privileges. It wasn’t an easy decision to make but it was the right one for my family. The Medical Board’s decision was based on a mistake; my decision to except it was based on needing to make a living.” 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 IPEB – Dated 20021213 VA (2 Mos. Pre -Separation) – All Effective Date 20030416 Condition Code Rating Condition Code Rating Exam Back Pain & Loss of Motion 5293-5299- 5292 20% S/p Laminectomy L4-5, L5-S1 5293-5292 40% 20030205 .No Additional MEB/PEB Entries. Left Knee Overuse Syndrome 5299-5014 10% 20030205 Left Ankle Instability 5271 10% 20030205 Right Ankle Instability 5271 10% 20030205 Right Hip Strain 5299-5014 10% 20030205 Right Knee Overuse Syndrome 5299-5014 10% 20030205 0% X 1 / Not Service-Connected x 1 20030205 Combined: 20% Combined: 70% ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case. Chronic Low back Pain with Radiculopathy. A review of the medical records shows that the CI experienced LBP, well documented since 1992, but exacerbated during a “hard parachute landing in Panama in 1995”, and worsened again after a “buddy carry” exercise in 1997. After a right L4/L5 hemilaminectomy in February, 1998, symptoms slowly worsened, resulting in a second discectomy and partial left hemilaminectomy in October, 2001. With continued symptoms of chronic LBP with radiculopathy, a post-operative magnetic resonance imaging (MRI) exam in December 2001 revealed “mild right L5/S1 neuroforaminal narrowing,” “persistent moderate to severe neuroforaminal narrowing at left L5/S1, possibly affecting the S1 nerve root.” Neurology consultation in September, 2002, revealed an abnormal electromyogram (EMG) with left L4, L5 and S1 and right S1 neuropathy. At the MEB exam, the NARSUM, 24 October 2002, noted “gradual improvement of pain,” but with “persistent difficulties with bending, stooping, lifting and running.” The MEB physical exam noted that the “general physical examination is within normal limits.” The NARSUM noted that the CI’s permanent profile, written in March, 2002, documented “Severe physical restrictions.” The presence or absences of surgical scarring, tenderness, muscle spasm, abnormal spinal contour or abnormal gait were not addressed. Deep tendon reflexes were normal except for a “diminished right ankle jerk,” without demonstrable motor or sensory deficit. Straight leg raise test was negative on the right but “somewhat positive” on the left at 80 degrees. Consultations obtained for the MEB included neurology, which noted “chronic radiculopathy in left lower extremity, L4, L5 and S1.” The MEB diagnosis was “Chronic low back pain secondary to degenerative disk disease at L4/5 and L5/S1 with radiculopathy.” A physical therapy examination on 28 October 2002 for the MEB records “back” flexion of 55 degrees, extension 10 degrees, and side bending of 10 degrees to both sides. The request for examination requests “ROM lumbar spine.” The PEB noted a moderate loss of range-of-motion (ROM) and awarded 20% using codes 5293, 5299, and 5292. At the VA Compensation and Pension (C&P) exam, 5 February 2003, 2 months prior to separation, the CI reported daily LBP which was “severely limiting,” with outside activities “severely impacted,” including any overhead work such as stocking groceries on a shelf. The CI stated that he was unable to sit or stand more than 15 minutes, had not had a full night’s sleep in 2 years, used a cane, and that his mobility was aggravated by repetitive motion. On physical examination, the examiner noted facial grimacing upon getting out of a chair, a slow and antalgic gait to the exam room, using a cane. On examination was noted a well healed surgical scar, mild tenderness to percussion but no muscle spasm. There was no lower extremity muscle atrophy, no sensory abnormality, and deep tendon reflexes were normal and symmetrical. The ROM was reported for the “LS spine” (lumbosacral spine); flexion was 40 degrees, extension 10 degrees, lateral bending 25 degrees bilaterally and rotation 20 degrees bilaterally. There was pain with motion. The VA awarded 40% rating under Code 5293-5292, due to “severe limitation of motion of lumbar spine” with “continued radiculopathy in bilateral lower extremities.” 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 Veteran Administration Schedule for Rating Disabilities (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 2002 rating schedule. The applicable diagnostic codes include 5292 (limitation of lumbar spine motion), 5293 (intervertebral disc syndrome) and 5295 (lumbosacral strain). The Board considered the rating under the VASRD diagnostic code 5292, in effect at the time of separation. The physical therapy ROM was of the “back.” It is not clear if this was thoracolumbar spine (lumbar plus thoracic spine) range of motion or lumbar spine as was indicated in the request for the examinations. The C&P examiner reported the ROM was of the lumbosacral spine. This is important for assessing the limitation of motion compared to normal as it is different for the lumbar spine where normal flexion is 60 degrees and the thoracolumbar spine where normal flexion is 90 degrees. Under the VASRD guidelines in effect at the time, there were separate codes for limitation of motion of the lumbar spine and dorsal (thoracic) spine, therefore the Board concluded the VA examiner was likely reporting a lumbar spine motion examination consistent with the VASRD in effect at that time and not combined thoracolumbar motion which was introduced into the VASRD in September 2003. If the physical therapist and the C&P examiner were reporting lumbar spine flexion, the limitation would be considered slight to moderate respectively supporting a 10% rating in the first, and 20% in the latter examination. Even if the examiners were instead reporting thoracolumbar range of motion, the limitation would still be considered moderate supportive of a 20% rating (including under current guidelines based on thoracolumbar motion). The Board next considered whether a higher rating was warranted under the guidelines for intervertebral disc syndrome, code 5293. The CI had well documented intervertebral disc disease with radicular symptoms but intermittent signs of radicular involvement, such as a diminished right ankle jerk reflex. No care for exacerbations was documented in the service treatment records and there are no VA treatment records for back pain in the months after separation. The only criterion for Code 5293 during the interim back pain rules period is the frequency of incapacitating episodes. Board members concluded that there were no documented incapacitating episodes that warranted consideration under the VASRD criteria for that rating, which had become effective prior to the CI’s separation. The Board also considered the rating under the code, 5295 (lumbosacral strain). All members agreed that there was characteristic pain on motion supportive of at least a 10% rating. The MEB examinations did not comment on presence of spasm, however it was absent at the time of the C&P examination, and there was not unilateral loss of lateral bending to support either the 20% or 40% rating under the lumbosacral strain guideline. Gait was not documented in the MEB NARSUM, but the C&P examination only two months later noted significant gait abnormality. The Board considered the functional loss due to pain reported in the examinations and concluded that a 20% rating under 5295 was supportable based on functional loss. The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had well documented degenerative disc disease, and the MEB documented nerve root involvement on the MRI and electrodiagnostic testing was positive for evidence of bilateral radiculopathy. On the MEB examination, the right ankle jerk reflex was diminished however strength was normal. However, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The diminished ankle jerk reflex was intermittent and could not be linked to significant physical impairment. Since no evidence of functional impairment due solely to neuropathy exists in this case, the Board cannot support a recommendation for a separately unfit rating based on nerve impairment. The majority of the Board concluded that the preponderance of evidence did not support a rating higher that the 20% rating assigned by the PEB. The minority voter placed more weight on the VA exam and considered the contribution of radiculopathy to the overall disability picture in concluding a rating of 40% was warranted. The Board majority considered the VA examination but noted it conflicted with the overall disability picture indicated by prior examinations and performance reports (May 2002 NCOER and 12 September 2002 commander’s letter) indicating performance of administrative duties as Company Training NCO was outstanding. Impairment in physically demanding military tasks was noted but no impairment in routine tasks was noted. 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 low back condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent, who recommended 40%, did not elect to submit a minority opinion. 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 Condition 5293-5299-5292 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120606, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review