RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201966
BRANCH OF SERVICE:  Army	BOARD DATE:  20130620
SEPARATION DATE:  20030630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31R/Communication Tactical Operator Maintainer) medically separated for chronic low back pain (LBP) status post a L4-5 discectomy and fusion.  The CI sought treatment in August 2001 for back pain with intermittent radicular symptoms in the left leg before surgery.  Conservative treatment was unsuccessful and the CI underwent a L4-L5 fusion in April 2002.  The CI complained of radicular symptoms in the right leg after surgery.  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed alternate aerobic events to satisfy physical fitness standards.  He was issued a permanent U2/L3/S2 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “low back pain, uncomplicated and nonradicular” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic LBP status post L4-5 discectomy and fusion as unfitting, rated 10%, referencing Department of Defense Instruction (DoDI) 1332.39 and Army Regulation (AR) 635-40 appendix B-39.  The CI made no appeals and he was medically separated.  An administrative correction was performed by the US Army Physical Disability Agency (USAPDA) only changing the rating code.

CI CONTENTION:  CI CONTENTION:  “Severe chronic pain caused by surgery and exacerbation of Degenerative Disk Disorder while in Service.  Neuropothy in legs with numbness and pain treated by the Veterans Hospital.  All my medical treatment has been at the VA.  I constantly have to take pain medications though dry needling techniques have made the pain medication less needed.  I have been seen many, many times at the VA Medical emergency room for extreme pain and spasms in both my legs and back.  I have a hard time working due to weakness and pain though I continue to work its getting much harder.  I pride myself on taking care of my family and as of late I have had to cut my work hours a lot due to problems walking.  I am a proud veteran and woudent be filling out the paperwork but its getting hard to live and work due to my injury.”

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 low back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention either 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:

PDA Admin Correction – Dated 20030306	VA - ( ~ 1.5  Mo. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP S/P Discectomy and Fusion	5293 5299 5295	10%	S/P L4-L5 Diskectomy	5293-5292	10%	20030809	
No Additional MEB/PEB Entries	Other x 5	20030809	
Rating:  10%	Combined Rating:  30%*	
Derived from VA Rating Decision (VARD) dated 20030925 (most proximate to date of separation [DOS]).
* rating increased effective 4 December 2003 with a 60% combined rating

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to postseparation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of the Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic LBP Status Post (s/p) Discectomy and Fusion.  The 2003 Veterans Affairs Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, were in effect at the time of separation.  The 2003 standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity.  The current §4.71a rating standards specify rating thresholds in degrees of ROM impairment and were in effect almost 3 months after the CI’s date of separation.  There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 7 Mo. Pre-Sep	VA C&P ~ 1.5 Mo. Post-Sep	
Flexion (90 Normal)	10*	30* 	
Extension (30)	10*	30	
R Lat Flexion (30)	30	30	
L Lat Flexion (30)	25	30	
R Rotation (30)	30	30	
L Rotation (30)	30	30	
Combined (240)	135	180	
Comment	PT exam ROM above:  *Pain limiting; Normal lumbar curve; + Ely’s 100° (tests disc protrusion); right straight leg raise (SLR) at 45°; neg Faber’s bilateral (Patrick’s test checks for hip arthritis); neg Ober’s (tightness of IT band); pos right slump for radicular pain; tenderness to palpation (TTP) T8-L3 centrally; decreased light touch in L2-3 dermatome on right; reflexes 2+ bilat LE; gait nonantalgic; supine SLR 60°; able to walk on heels and toes; no atrophy.  MEB NARSUM: Flexion and extension still 10 degrees each and both limited by pain, side bending and rotation listed as “normal;” normal lumbar curve with well healed midline scar; no muscle spasm; no pain with axial loading, “some pain” with simulated rotation; seated SLR negative but supine SLR positive at approx. 60 degrees bilaterally; no muscle atrophy below the waist; normal LE reflexes; able to heel and toe walk; neuro exam “otherwise normal,” no sensory exam documented; 72 inches tall and 240 pounds (BMI 32.5)	* with pain; gait nml; no pain on repetitive motion; reflexes 2+ nml in knees and ankles; vibration and touch sensation was intact in both feet;  SLR 45° bilateral; no motor examination; TTP of the scar lower back ; 235 pounds	
§4.71a Rating			
5292	20% if Moderate, 40% if Severe	20% if Moderate, 40% if Severe	
5295	10%	10%	

The CI’s LBP is well documented in the numerous notes in the service treatment record (STR).  The CI initially presented to the emergency room (ER) in August 2001 with a 1-week history of severe LBP with radiation to the leg calf and he was treated with a muscle relaxant and a narcotic medication.  Lumbar spine X-rays were normal.  The CI continued with complaints of LBP with left leg pain.  A lumbar spine magnetic resonance imaging revealed a mild midline disc protrusion at L4-5.  Repeat lumbar spine X-rays were normal.  The CI’s symptoms did not improve with physical therapy and epidural steroid injections led to relief for only 3 to 4 weeks and he underwent a thoracolumbar L4-5 interbody fusion in April 2002.  Although the CI’s back pain improved after surgery, he continued to have back pain and numbness on the right side.  The CI was seen in the ER for LBP and right leg weakness in July 2002 and lumbar spine X-rays performed on that visit were normal.  A repeat lumbar spine CT scan showed a slight posterior protrusion of the L4-5 disc left paracentrally.  The CI was seen again in the ER for LBP, numbness and tingling in the legs, however the motor examination was normal.  The CI had one episode of being placed on quarters for a 24-hour period for LBP.  The narrative summary (NARSUM) exam performed approximately 7 months prior to separation indicated the CI began to have significant back pain in January 2001 after playing volleyball; however, the STR indicates this occurred in August 2001.  The examiner noted the CI had had continual back pain ever since that time and he had been followed in the pain clinic and was being treated with Neurontin and narcotic pain medication.  The CI was not able to perform his usual job and he was working in the gym.  The examiner opined that the CI had adequate compliance and that his condition would not improve as long as he remained on active duty.  The NARSUM exam findings are summarized in the chart above.  Although the CI’s height and weight result in a body mass index (BMI) of 32.5 indicating obesity, the abdominal examination documents a soft and benign abdomen, and there is no mention of the CI’s abdominal size interfering with his thoracolumbar ROM.

The Board noted that the examiner stated the CI had "some significantly positive Waddell features.”  While this statement was not entirely accurate, the case was adjudicated independently of any such findings and the rating solely based on objective findings as per the VASRD.  Thus, the presence or absence of Waddell signs and their significance is rendered moot.

The CI was issued a permanent U2/L3/S2 Profile for chronic LBP (s/p fusion L4-5), neck pain, and anxiety.  An electromyogram (EMG) performed January 2003 demonstrated that although there were needle EMG abnormalities found in the low lumbar paraspinals, these findings were likely a result of the back surgery performed in April 2002 rather than a radiculopathy.  The examiner further noted that if there was an “actual radiculopathy, there would have been leg findings as well and there were not.”  The commander’s statement documented that the CI was unable to perform the duties of his MOS because of his limited ROM and due to his back pain.  The CI continued with complaints of LBP and radicular symptoms; however, at a VA medical appointment approximately 2 weeks after separation the CI denied any lower extremity weakness.  The VA Compensation and Pension (C&P) exam performed approximately a month after separation noted that the CI was currently taking nonsteroidal anti-inflammatory drugs, a muscle relaxer and Neurontin regularly and a narcotic pain medication as needed.  He occasionally needed a cane to ambulate.  He was working as a salesman.  The examination contains no information regarding symptoms of radiculopathy.  The C&P exam findings are summarized in the chart above.  At this examination, the CI’s weight had decreased 5 pounds and the BMI was 31.9 and the abdominal examination was unremarkable.  This BMI value also indicates obesity but there is no mention of the abdomen interfering with the performance of thoracolumbar ROM measurements.

Board precedence requires a functional impairment tied to fitness to support a recommendation for the addition of a peripheral nerve rating at separation.  The sensory component in this case has no functional implications.  Reflexes were normal and EMG testing did not reveal any radiculopathy.  There was no documentation in any of the notes proximate to separation that indicated foot drop or chronic lower extremity weakness.  At a VA clinic appointment, the CI denied any lower extremity weakness.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

The Board directs attention to its rating recommendation based on the above evidence.  The USAPDA administrative correction coded the chronic LBP s/p discectomy and fusion as 5293 (intervertebral disc syndrome) and analogous to 5295 (lumbosacral strain) rated at 10% for characteristic pain on motion.   The VA coded the s/p L4-L5 diskectomy as 5293 with 5292 (spine, limitation of motion of, lumbar) and rated at 10% for slightly limited motion of the lumbar spine, or demonstrable deformity of a vertebral body form fracture with muscle spasm or limited motion.  The CI had intervertebral disc disease; however, he only had one 24-hour episode of quarters for LBP.  The Board then turned its attention to the limitation of motion documented on the examinations.  Although the C&P examination was after separation, it was closer in time to the date of separation and therefore the Board places greater probative value on this examination.  The majority of the Board determined that the 2003 VASRD rating criteria for code 5292 (spine, limitation of motion of, lumbar) with options of mild, moderate, or severe applies to the total combined ROM measurements.  Therefore, with total ROM measurements of 180 degrees on the C&P exam and 135 degrees on the MEB exam (normal ROM being 240 degrees) the Board majority felt the lumbar spine limitation of motion was moderate.  The Board majority did not believe the limitation of flexion alone was sufficient to support a determination of a severe limitation of overall motion of the lumbar spine.  The Board also considered coding as 5295 and all agreed the 10% rating criteria for “characteristic pain on motion” was met; the 20% criteria, “with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position” was not met; the 40% criteria “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” was not met because, while the CI did have marked limitation of forward bending in a standing position, he did not meet the other requirements for a severe rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20%, coded 5292, for the chronic LBP s/p discectomy and fusion 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.  As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 appendix B-39 for rating the chronic LBP s/p discectomy and fusion condition was operant in this case and the condition was adjudicated independently of these documents by the Board.  In the matter of the chronic LBP s/p discectomy and fusion condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  The single voter for dissent who recommended a 40% rating submitted the appended minority opinion.  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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic LBP S/P Discectomy and Fusion	5292	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121211, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

MINORITY OPINION

This Board member recommends a 40% rating for severe limitation of motion of the lumbar spine based on the pain limited flexion of 10 degrees at the MEB NARSUM exam and pain limited flexion of 30 degrees at the VA C&P exam.  The MEB NARSUM exam documented lumbar flexion that was limited to only 10 degrees by pain, which indicates a severe limitation of motion.  Although the MEB NARSUM examiner noted “some significantly positive Waddell features,” only one positive and one equivocal Waddell sign was noted on examination.  Additionally this limitation of motion cannot be explained by the CI’s obesity alone.  Although the VA C&P examination was after separation, it was actually closer in time to the date of separation, and it documented flexion limited to 30 degrees; this would also be considered a severe limitation of motion.  There are no findings in the record that would cast doubt on the accuracy of this examination on the date it was completed.  Although the 2003 VASRD rules do not base their rating criteria on goniometric measurements, measurements of 10 degrees and 30 degrees of flexion indicate a severe limitation in motion of the lumbar spine and a marked limitation in forward bending from a standing position.  Therefore, both examinations support a disability rating of 40% using either VASRD code 5292 or 5295.  

While the right and left lateral flexion and right and left rotation range-of-motion (ROM) measurements were normal or near normal on both examinations and lumbar extension was normal on the VA C&P examination, the severely limited lumbar flexion is sufficient to justify a 40% rating.  The VASRD code 5292 does not require severe limitation of motion in all planes of motion.  Additionally, if today’s VASRD rating criteria were applied, a 40% disability rating would be warranted based on “forward flexion of the thoracolumbar spine 30 degrees or less.”  The current VASRD rating criteria for a 20% rating is based on either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees OR the combined ROM of the thoracolumbar spine not greater than 120 degrees.  However, the 40% rating does not include an option based on a combined range of motion and is solely based on the forward flexion measurement.  Therefore a reasonable reconciliation of the degree of severity for the older spine VASRD codes and ratings with the objective thresholds specified in the current VASRD §4.71a general rating formula for the spine would support a rating based on a severe limitation of flexion alone.  It is unreasonable to require an additional finding of a severely limited combined ROM in order to assign the 40% rating based on the 2003 VASRD.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), this Board member recommends a disability rating of 40% for the chronic LBP s/p discectomy and fusion condition.

RECOMMENDATION:  This Board member recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic LBP S/P Discectomy and Fusion	5292	40%	
COMBINED	40%	

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130020025 (PD201201966)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA