RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01691
BRANCH OF SERVICE:  Army	BOARD DATE:  20140410
SEPARATION DATE:  20040326

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SGT/E-5 (52D/Power Generator Repairer) medically separated for a lumbar spine condition.  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 lumbar condition, characterized as “chronic lumbar pain related to PLIF [defined below],” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The informal PEB adjudicated “chronic subjective back pain, without significant neurological abnormality” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy and, the CI was medically separated.

CI CONTENTION:  “The 10% rating did not consider the seriousness of my back injuries with the nerve damage.  Nor did it reflect the health problems of high blood pressure that went untreated as a result; I have a service connected disability rating of 100% with the V.A. for loss of use of lower extremities and hypertension.  I have a defibrillator implant, in need of heart transplant and ejection fraction of approximately 10%.  With only 15 months of discharge from active duty I had a massive heart attack.  After 12 years active duty and numerous yrs. in TNARNG, because of my injuries I was unable to reach retirement.”

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 possibility of service ratable neuropathies associated with unfitting spine conditions is routinely entertained by the Board and will be addressed in the Board’s recommendations.  The referenced heart and blood pressure conditions were not identified by the PEB and thus are not within the DoDI 6040.44 defined purview of the Board.  Those, and any conditions or contention not requested in this application, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the severe impairment with which his service-connected condition burdens him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; but, post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040226 | VA - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain | 5241 | 10% | DDD, Lumbar Spine, Post Fusion | 5243 | 20%* | STR
No Additional MEB/PEB Entries | Other x 3 | STR
Combined:  10% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20040621 (most proximate to date of separation [DOS]).
* Increased to 40% effective 20110307 per VARD dated 20110516.

ANALYSIS SUMMARY: The Board notes that the earliest VA spine evaluation was conducted on 21 May 2010, 5 years after the date of separation.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  Therefore the service treatment record evidence was assigned the determinant probative value with respect to the Board’s recommendations.

Lumbar Spine Condition.  There is an entry in the STR documenting issues with back pain as early as 1986.  The CI underwent a series of surgeries (civilian) commencing in 2001; with the last being a posterior lumbar interbody fusion (PLIF, fixation of L4/L5 in this case) in January 2002.  There is an entry from February 2003 clearing him for deployment, with recommended physical limitations and he deployed with his unit in May 2003.  There is an in-theater entry from 16 September 2003 noting “severe” back pain and a flexion of 40 degrees (normal 90 degrees), but documents normal strength and neurologic findings. The narrative summary (NARSUM) states that he “re-injured” his back in Kuwait and was medically evacuated (via Germany), arriving stateside on 24 September 2003.  The intake orthopedic note of 26 September provides a detailed history, including a chronology of prior surgeries; but, does not document a physical exam or neurological findings.  Magnetic resonance imaging showed hardware and post-surgical changes, but the report stated, “No significant abnormality noted at L3-4 or L5-S1.”  There is an early primary care entry noting “normal gait, neurologic deferred;” and, there are no follow-up orthopedic or neurosurgical entries in evidence which address gait, neurologic or range-of-motion (ROM) observations.  The NARSUM documents a surgical consultation (not in evidence) with “adamant refusal”; and, there is a medical advisory opinion to the PEB stating “His informed decision is reasonable.”  The MEB’s ROM evaluation by physical therapy was performed 3 months prior to separation and documented active flexion of 31 degrees and combined ROM of 115 degrees, without annotation of gait, curvature, painful motion or physical/neurological findings.  The NARSUM noted “non-radiating” constant pain rated 5/10, interfering with daily activities and sleep.  The physical exam noted an “unsteady” gait, without comment regarding spasm or tenderness, but “a lot of pain with [ROM].”  The examiner commented “Decreased muscle strength bilaterally in the lower extremities: The left is 1/2 the strength of the right lower extremity.”  The neurological exam further documented the absence of atrophy, symmetric reflexes and normal sensation.  A repeat neurologic exam by the NARSUM examiner (primary care) appears in an outpatient note of January 2004 (2 months pre-separation), and the same findings were recorded.

As noted above there is no temporally probative VA spine evaluation in evidence, and the VARD at separation was based on service evidence.  Of some relevance with respect to the lower extremity neuropathies, the VA’s May 2010 evaluation (as referenced in the introduction) documented significant bilateral lower extremity (BLE) motor deficits (right = left) and, the examiner opined that this was not linked to neurologic impairment, but “appears to be lack of use and due to pain.”  A subsequent May 2011 VARD denied service-connection of the BLE impairment, citing a VA provider opinion that the etiology was diabetic neuropathy (not service-connected).  An August 2011 VARD granted a 100% rating for “loss of use of [BLE]” and, cited the above examiner opinion that the disability was due to from the lumbar condition and thereby service-connected.  The rating was not under a peripheral nerve code, but rather under 5110 (loss of use of both feet).

The Board directs attention to its recommendations based on the above evidence.  The PEB’s 10% rating was supported by the USAPDA pain policy, but was not consistent with the VA Schedule for Rating Disabilities (VASRD) §4.71a criteria for the ROM under consideration; criteria which were applied for the VA’s 20% rating of the same ROM.  Either the flexion of 31 degree (30 degree is the threshold for a 40% rating) or combined ROM of 115 degree meets §4.71a requirements for a 20% rating.  There is no documentation of incapacitating episodes that would achieve a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 20% for the lumbar spine condition.  The PEB code 5241 (spinal fusion) is appropriate.

The Board then turned to deliberation of whether additional rating could or should be recommended on the basis of the neuropathy (arguably only on the right) given the significant findings documented in the NARSUM.  With reference to the Board’s scope jurisdiction for such a recommendation, members agreed that the PEB’s DA Form 199 reference to neurologic findings was sufficient to support a conclusion that the neuropathy was itself PEB adjudicated.  Although the NARSUM finding was not corroborated by the Kuwait examiner just prior to medical evacuation and a normal gait was noted in one entry during the MEB period; there is no contrary evidence which would oppose the significant right lower extremity weakness noted in the NARSUM.  It would seem logical, however, that if motor weakness of that magnitude was present during the surgical specialty consultations documented in the NARSUM, that elective deferral of surgery would not have been countenanced or judged to be reasonable by the PEB medical advisor.  This notwithstanding, firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The post-separation VA evidence argues that any lower extremity impairment present at separation was likely secondary to pain rather than nerve impairment and was certainly not of the magnitude rated by the VA years later.  Without a convincing nexus of neurologic impairment ratable under a peripheral nerve code, members agreed that neither the Board’s scope latitude nor any performance based functional evidence would provide adequate underpinning for a recommendation for rating of a spine-associated neuropathy at separation.

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 the USAPDA pain policy for rating the lumbar spine condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the lower extremity neuropathies attendant to the unfitting spine condition, the Board unanimously agrees that it cannot recommend additional disability rating.  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
Surgical Residuals (L4-S1 Fusion), Lumbar Spine | 5271 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20150000670 (PD201301691)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01691