RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01718
BRANCH OF SERVICE:  Army	BOARD DATE:  20150318
SEPARATION DATE:  20051018

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for low back pain (LBP).  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS), but the CI was authorized to perform an alternate physical fitness test (per PROFILE).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain following lumbar fusion,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “low back pain, following lumbar fusion” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “They didn’t take into consideration that R-- had spinal fusion instead of just back pain.  He was shocked by power lines that fell on top of him in Iraq.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20050916	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain Following Lumbar Fusion	5241	10%	Status Post Lumbar Spine Fusion, with Retained Hardware at L4-5 and L5-S1, with Bone Grafting from Left iliac Crest and Left Sciatica (also Claimed as Numbness in Left Leg and Left Foot and Left Hip Pain due to Bone Graft)	5241	20%	20060417	
Other x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060911 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain Condition.  The earliest note in the service treatment record was dated 20 October 2003 at which time the CI complained of left buttock pain that radiated down his left leg for a week.  The CI related that he was in a military vehicle and was about to pivot around with a piece of heavy equipment when his left foot became stuck and he heard a “pop” around his buttocks and felt a “knot” in that area.  At that time he denied back pain or bowel/bladder symptoms.  He had pain with a straight leg raise (to determine nerve root irritation) and was treated with a nonsteroidal anti-inflammatory medication and a muscle relaxant.  Pain increased; his medication was changed; and a temporary profile was issued.  Initial reading of X-rays of the lumbar spine showed a decreased lordotic curve and no evidence of a bony abnormality.  On 13 February 2004, the CI indicated he received a shock when a power line fell and a wire came in contact with his vehicle.  The right side of his body went numb and he experienced a temporary black out; and he noted on regaining consciousness that pain radiated down the right side of his body.  The next record dated 7 December 2004 noted the CI was referred for left lower extremity pain/weakness secondary to a shock when the left side of his body went numb in February 2004.  The physical therapist diagnosed a neuropathy of the left lower extremity secondary to electric shock, and the CI was referred to neurology.  Additional history on 8 December 2004 indicated the CI, while working on changing track on a Bradley vehicle, felt a pop in the back/buttock that affected the left thigh, calf and foot.  A magnetic resonance imaging (MRI) dated 13 December 2004 showed an L5 and S1 small disk protrusion abutting the left S1 nerve root.  An electromyogram (EMG - an electrodiagnostic study of muscle status) finding favored a sciatic notch lesion involving the superior gluteal nerve to the gluteus medius muscle (of the buttock).  An epidural steroid injection was given for pain relief on 16 December 2004; and a percutaneous (through the skin) disc decompression was performed on 5 January 2005.  At a physical therapy visit, it was noted that a spinal fusion of L5-S1 was performed on 8 March 2005; the CI ambulated with a cane; and he “drags LLE (left lower extremity) during gait.”  A “trunk” active range-of-motion (ROM) was 10 degrees flexion and 0 degrees extension.  Three months post-operatively, the CI complained of lower back pain and occasional pain in the left lower extremity.  On examination there was tenderness to palpation in the lumbar region; motor strength was normal; and the ROM in the back was decreased.

The MEB narrative summary dated 14 June 2005 noted the CI underwent a two-level interbody fusion for degenerative disc disease and then developed a transition syndrome for which he had surgery to give him an additional level, so his total fusion included L3 to S1 on 8 March 2005.  Since that time, he had a predictable recovery and used narcotic level pain medication.  Physical examination revealed 5/5 lower leg strength bilaterally and normal reflexes.  There were no paraspinal muscle spasms and no antalgic gait.  The CI reached maximum medical benefit and could not wear body armor, was not deployable, and was unable to perform his MOS.  A permanent L3 profile was issued on 16 June 2005 for status post lumbar spine surgery with restrictions of all military functional activities including wearing personal protective equipment, no running in formation, stooping, bending, squatting or prolonged standing or sitting, and a duty day limited to 8 hours; and alternate footwear was authorized.  The commander’s statement dated 4 August 2005 indicated the CI could not carry a rucksack, lift anything greater than 25 pounds, wear body armor, LBE (load bearing equipment) or a Kevlar helmet; the CI had been unable to perform his duty as an infantryman; and, because he had to use pain relieving narcotics, he could not ride in military vehicles or handle a personal weapon.  At the MEB examination dated 5 August 2005 the CI reported back pain after surgery and numbness and tingling down the left leg.  The MEB physical examiner noted mild tenderness to touch over the lumbar paraspinal muscles, 4/5 strength in hip flexion, abduction and left foot dorsiflexion, an absent left ankle reflex, and dysesthesia laterally in the left leg and left foot.  ROM measurements of the trunk were 5 degrees extension and 10 degrees flexion.  The CI was, as noted by the examiner:

injured while deployed . . . Feb 2004 – Electrical wire fell on Bradley turret.  SM lost consciousness & Awoke with numbness/paralysis in leg, pain in left shoulder/arm & intermittent numb/tingling in left leg persisted.  Symptoms much worse Oct 2004 with lifting tire.  Was medevac . . . Dec 2004.  Seen by neurosurgery.  EMG, MRI abnormal with disc protrusion at L5S1 with radiculopathy by EMG.  Underwent needle decompression Dec 2004 secondary to failure of conservative treatment (steroid inj. meds).  Slight improvement in symptoms.  Returned to [home base].  Has continued work up & eventual lumbar spine fusion (no records for review) Mar 2005.  Remains with back/hip pain which radiates to left leg.  Numbness in left leg/foot with prolonged sitting/standing.

At a VA Clinic examination for an employment physical on 13 January 2006, 3 months after separation, the CI noted he had numbness in his right buttock and right leg into the medial aspect of his right foot.  There was a full ROM of the lumbar spine, hips and knees with good lumbar flexibility without pain.  Straight leg raise was negative bilaterally.  No bone, joint or muscle tenderness was noted.  Palpation of paraspinous muscles revealed no spasms or tenderness.  Gait was normal and was able to heel, toe and tandem walk without difficulty.  Muscle strength and reflexes of upper and lower extremities was normal.  He had a well healed midline scar measuring approximately 7.5 cm.  The CI was asymptomatic and on no medications.  A physician note dated 14 June 2006 indicated the CI sought care for left knee and foot pain for a week thought to be from lifting a heavy box at his work.  The CI still had numbness in his right buttock and leg and was continuing Tramadol (a narcotic-like pain medication), but there were no sensory defects, reflexes were normal, and tenderness along the back was present.  At the VA Compensation and Pension (C&P) examination dated 17 April 2006, performed 6 months after separation, the CI reported left leg residual sciatic symptoms marked by paresthesias, left leg muscle cramps and weakness and extreme hypersensitivity to pressure in the L5-S1 dermatome.  There was a normal gait with mild weakness in the left gastrocnemius muscle and recurring spasticity in the left posterior leg.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~7 Mo. Pre-Sep
	PT (for MEB) ~2 Mo. Pre-Sep
	PCC ~3 Mo. Post-Sep
	VA C&P ~6 Mo. Post-Sep
	
Flexion (90 Normal)	10	25(25/22/24)	FROM	60	
Extension (30)	0	5(5/5/5)		20	
R Lat Flexion (30)	15	15(15/15/15)		--	
L Lat Flexion (30)	5	10(10/10/10)		--	
R Rotation (30)	10	30(38/40/40)		--	
L Rotation (30)	5	25(28/25/27)		--	
Combined (240)	-	105	-	-	
Comment	Measured “Trunk”	Limited motion due to pain	Examination for work; no pain or tenderness	Limited by pain; back tender one year post-op; loss of motion by pain-20-25 degrees flexion	
§4.71a Rating	-	40%	-	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5241 (spinal fusion) for LBP following lumbar fusion.  The VA awarded a 20% rating using code 5241 status post lumbar spine fusion with bone grafting and left sciatica.  Two months prior to separation, the CI had an examination performed by a physical therapist who noted three flexion measurements at 25 degrees, 22 degrees, and 24 degrees, which would be rounded to 25 degrees for rating purposes and could warrant a 40% rating, especially in view of the extent of the multi-level fusion; however, 3 months after separation at an examination for work, performed by a physician’s assistant, the ROMs were reported as full without pain and no muscle tenderness.  At 6 months after separation, the CI again had a limitation of motion by pain, which is not unexpected considering the extent of his surgical procedure and the retained instrumentation placed during the procedure.  Since the MEB examination was more detailed, although unclear as to whether a goniometer or inclinometer was used, and more proximate to separation than the VA C&P examination, it should be given a higher probative value with the caveat that soon after separation, the CI appeared to be doing quite well except for the radiculopathy of his left leg.  However, the examination for work did not provide quantitative ROM measurements and the VA examination was limited to only flexion and extension; therefore, no combined ROM could be determined.  The Board considered whether an additional rating could be recommended under a peripheral nerve code for the associated 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 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 has limited functional implications; and, the motor impairment was either intermittent marked by mild weakness of the gastrocnemius muscle or relatively minor and cannot be linked to significant functional consequence.  That being the case, there is insufficient evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; 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 (Resolution of reasonable doubt) and VASRD §3.102 (Reasonable doubt), which states, “[t]he reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions,” the Board recommends a disability rating of 40% for the 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.  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 LBP condition, the Board, by a majority vote, recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Low Back Pain	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150011028 (PD201301718)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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