RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201753
BRANCH OF SERVICE:  Army	BOARD DATE:  20120808
SEPARATION DATE:  20021105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (54B/Chemical Operations Specialist) medically separated for a lumbar spine condition.  He experienced an onset of intermittent low back pain (LBP) following a duty-related motor vehicle accident (MVA) in 1998, which was associated with bilateral radicular symptoms and subsequent urinary incontinence.  It was diagnosed as disc disease (L2-3); the bladder symptoms were determined to be unrelated to spinal pathology; and, surgery was not recommended.  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 MEB forwarded “chronic low back pain with lumbar degenerative disc disease and L2-3 disk extrusion,” as the sole condition, to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB (administratively corrected) adjudicated the condition as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI is deceased, and the application is submitted by his widow, stating simply, “Checking for accuracy of the DoD disability 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 lumbar spine condition is addressed below.  The potential for separate rating of radiculopathies is considered by the Board as intrinsic to PEB adjudications for spine disease.  The bladder condition, possibly implied for consideration, was not identified by the PEB and thus is not within the DoDI 6040.44 defined purview of the Board.  The bladder condition (which was implicated in the commander’s statement), and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service Revised IPEB – Dated 20020726	VA (3 Mos. Pre –Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain …	5299-5295	10%	Lumbar Disc Disease	5293	10%*	20020806	
No Additional MEB/PEB Entries	Urge Incontinence	7599-7517	20%	20020806	
	Not Service Connected x 8	20020806	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20021106 (most proximate to date of separation [DOS]).
* VARD dated 20040719, via a Decision Review Officer (DRO) decision, raised spine rating to 20% and added bilateral
   radiculopathy ratings (10% each) retroactive to DOS, but cited VA evidence up to 17 months post-separation. 

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The CI’s back pain resolved with conservative treatment after his 1998 MVA, but recurred in 2000 with bilateral sciatic radiation and intermittent paresthesias.  The symptoms persisted and imaging confirmed diffuse degenerative changes and a protruding disc at L2-3 without neural encroachment.  Subsequent symptoms of urinary urgency and mild incontinence were confirmed by neurosurgical consultation and urodynamic study as non-neurogenic.  There are multiple entries in the service treatment record (STR) confirming normal motor, reflex and sensory findings for the bilateral lower extremities (BLE).  He underwent a protracted course of conservative measures which included medication, physical therapy (PT), steroid injections, pain management and temporary profiles.  He did not improve adequately, repeat imaging confirmed stable disc disease, surgery was not advised and MEB proceedings were initiated. Earlier STR entries describe grossly normal thoracolumbar range-of-motion (ROM); but, various others closer to separation characterize it as "decreased,” "limited,” and with "significant limitations.”  There was no STR documentation of incapacitating episodes, abnormal gait or abnormal spinal contour.  Goniometric ROM measurements provided by PT (~6 months prior to separation, and after above citations) were flexion of 85 degrees (normal 90 degrees) and combined ROM of 210 degrees (normal 240 degrees).  The narrative summary stated that, “[CI] continues to have constant low back pain which he rates as 9/10.  He has worsening to 10/10 with prolonged standing or sitting, physical activity, and lifting weight.”  The physical exam noted spinal and paraspinal tenderness with no comment on gait, spasm, or contour.  Detailed and normal BLE neurological findings were documented.  The PT ROM measurements, as above, were cited.  The VA Compensation and Pension (C&P) evaluation (3 months prior to separation) quoted a complaint of “constant pain in the back…I have to constantly move.”  Limitations were cited for standing, sitting and bending.  The VA physical exam noted normal gait and coordination and “some lumbosacral spine stiffness with a full range of motion without pain.”  BLE strength, reflexes, and sensation were normal and the examiner did not diagnose peripheral neuropathies.  A repeat C&P evaluation of 29 October 2003 (11+ months post-separation) diagnosed BLE peripheral neuropathies premised on subjective paresthesias.

The Board directs attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20		
Slight ........................................................................................................................................ 10
5293 Intervertebral disc syndrome:
…
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10

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 osteo-arthritic 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
The PEB’s DA Form 199 cited “pain with motion” in support of its 10% rating under 5295, which is consistent with the criteria of that code; criteria for the higher ratings under 5295 are not in evidence.  The VA rating under 5293 is likewise supported, but there is no evidence for “recurring attacks” which would support a higher rating under that code.  Members discussed the option of a 20% rating under 5292 for “moderate” limitation of ROM, relying on the gross ROM observations from the STR as elaborated above.  Members agreed however that the measured ROM evidence from the MEB and VA evaluations most proximate to separation carried the preponderant probative weight and accordingly does not adequately support a recommendation for a rating greater than 10% under 5292.

The Board further considered whether an additional rating could be recommended under peripheral nerve codes, as ultimately conferred by the VA, for the associated BLE sensory radiculopathies elaborated above.  Board precedence requires a functional impairment linked to fitness to support a recommendation for the addition of the peripheral nerve rating in spine cases.  The pain component of the radiculopathies could not be extricated from the general spine rating; there was no motor weakness as a functional consideration; and the intermittent sensory component in this case has no functional implications.  There is no evidence of a separately ratable functional impairment (with fitness implications) from the radiculopathies and the Board cannot support a recommendation for an additional 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 lumbar spine 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of bilateral lower extremity radiculopathies associated with the unfitting lumbar spine condition, the Board unanimously agrees that it cannot recommend additional ratings for peripheral nerve impairment.  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 with Normal Neurologic Examination	5299-5295	10%	
COMBINED	10% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120608, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130019774 (PD201201753)

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’s spouse 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