Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201656
BRANCH OF SERVICE:  Army	BOARD DATE:  20130418
SEPARATION DATE:  20040919

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42F20/Personnel Information Systems Management) medically separated for chronic back pain.  His pain started in 2002 while deployed to Afghanistan.  He was diagnosed with degenerative disc disease (DDD) and no surgery was indicated.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition characterized as “multi-level DDD from L3-S1 with left lower extremity radiculopathy at the L5-S1 nerve root” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the chronic back pain with a history of pain starting after lifting canisters while stationed in Afghanistan as unfitting, rated 10%.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “PDBR to re-evaluate my back injury rating and determine whether the migraine headaches condition should have also been considered separately unfitting and factored in my overall rating.”

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.  The requested migraine condition was not identified by the PEB, and thus is not 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 Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20040804 | VA - (7 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain … | 5237 | 10% | Lumbar Strain with IVD Involving L5 Spinal Nerve Root Segment | 5237 | 10% | 20050412
No Additional MEB/PEB Entries | Migraine Headaches | 8100 | 0% | 20050412
| Other x 7 | 20050412
Combined:  10% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20050803 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Back Condition (Including Neurologic).  The narrative summary notes complaints of back pain with magnetic resonance imaging evidence of multi-level DDD L3-S1 with herniated disc at L4-5 and L5-S1 with mild nerve root impingement.  At the MEB exam, the CI reported constant low back pain with intermittent numbness and tingling in the left leg.  Pain was increased with activities.  The CI was not a surgical candidate.  The MEB physical exam noted a normal gait and “the spine is straight.”  There was limited range-of-motion (ROM) of forward flexion to 65 degrees (normal 90 degrees) and combined thoracolumbar ROM of 170 degrees (normal 240 degrees) [combined ROM was calculated using DeLuca and Veterans Affairs Schedule for Rating Disabilities (VASRD) Spine notes 2 and 4 (to truncate and round ROMs).  Electrophysiologic study electromyogram/nerve conduction study in March 2003 documented Left L5-S1 radiculopathy.  At the VA Compensation and Pension exam performed 7 months after separation, the CI reported constant pain in the mid to lower back that traveled down to the legs.  The pain could be elicited by physical activity and the CI related a day of incapacitation per year.  Exam demonstrated radiating pain on movement of the left leg, normal ROM with “joint function was additionally limited by pain, fatigue, weakness, lack of endurance, and incoordination after repetitive use with pain having the major functional impact.”  The examiner stated “there are signs of intervertebral disc syndrome with chronic and permanent nerve root involvement and the findings are as follow.  L5: Sensory deficit of left dorsal foot.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition at 10% coded 5237 (lumbosacral strain) and noted normal neurological exam.  The VA used the same rating level and coding, and both exams warranted a 10% rating for either limited ROM or IAW VASRD §4.59 (painful motion) or §4.40 functional loss.  The Board considered whether additional Service rating could be recommended under a peripheral nerve code, for the associated L5-S1 radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service 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 was the top of the left foot and had no functional implications, and no motor weakness was in evidence.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional Service disability rating 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 back condition, and no ratable peripheral nerve condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 back condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication, and no additional peripheral nerve rating.  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 | 5237 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010341 (PD201201656)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201656