RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02221
BRANCH OF SERVICE:  Army	BOARD DATE:  20150508
SEPARATION DATE:  20061219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Firefighter) medically separated for chronic low back pain (LBP).  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 “chronic low back pain with left radicular pain in S1 distribution” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (pseudomeningocoele, resolving) judged as medically acceptable.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB, which affirmed the PEB finding and rating, and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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:

FPEB – Dated 20061103 | VA* - based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain | 5243 | 20% | Chronic Low Back Pain | 5237 | 0%** | STR
Other x 0 (Not In Scope) | Other x 1
RATING:  20% | RATING:  0%
*Derived from VA Rating Decision (VARD) dated 20070524 (most proximate to date of separation (DOS).  **Non-compensable rating assigned for failure to report to VA exam.

ANALYSIS SUMMARY:

Chronic LBP Condition.  Treatment records evidenced that the CI sustained an injury in August 2004 which resulted in LBP.  A neurosurgery consultation, dated 21 February 2004, documented a history of severe back pain and left leg radicular pain.  The examiner referenced a “very large L4-5 disc extrusion to the left with severe compression on his neural elements.”  The examination demonstrated an antalgic gait and positive radicular testing.  On 5 March 2005, the CI underwent partial removal of the bone at the lumbar-4 level to decrease the pressure on the nerve root (hemilaminectomy).  Radiographic evaluation, dated 24 February 2006, noted a lumbar-4 laminectomy and moderate central canal stenosis at the lumbar 4-5 level.  An electromyogram (EMG), dated 27 February 2006, evidenced left lumbosacral radiculopathy.

The narrative summary (NARSUM) documented that the CI underwent a left lumbosacral nerve block.  At the time of the NARSUM, the CI reported a reduction in pain from 7/10 to 2/10.  The physical examination demonstrated decreased range-of-motion (ROM) (20 degrees flexion, 10 degrees extension), positive radicular testing, and mild tenderness to palpation over the left paraspinous muscles.  A diagnosis of chronic left radicular pain in the S1 distribution was rendered and designated as not medically acceptable.  A physical therapy note, dated 30 October 2006, documented chronic LBP with radiation down the left lower extremity.  The therapist referenced a magnetic resonance imaging study in September 2006 which revealed re-herniation of the L4-5 disc.  On physical examination, there was decreased curvature of the lumbar spine (lumbar lordosis), limping on the left, and decreased thoracolumbar ROM (45 degrees flexion, 15 degrees extension) due to pain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP condition as unfitting with a disability rating of 20% using VASRD code 5243 (intervertebral disc disease).  The VA rated the condition at 0% citing the assignment of a non-compensable evaluation until the current disability level could be determined.  The Board considered whether the evidence supported a higher than 20% rating.  The Board noted that prior to separation, between January and October 2006, the CI’s thoracolumbar forward flexion increased from 30 to 45 degrees; 45 degrees of forward flexion is evaluated at 20% IAW VARD §4.71a.  There was no evidence of unfavorable ankylosis of the thoracolumbar spine.  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 chronic back pain condition.

The Board then considered the left lower extremity radicular pain resulting from the unfitting condition.  The radicular pain was referenced in several treatment notes, did not resolve with surgical intervention, and was confirmed by EMG.  The Board determined that the preponderance of supported that the left leg radiculopathy was separately unfitting.  The Board then considered a rating under VASRD code 8720 (sciatic nerve neuralgia).  The Board determined that the left lower extremity pain and weakness met criteria for a rating as mild sciatic nerve neuralgia for a 10% disability rating.

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that the pseudomeningocoele condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The pseudomeningocele was documented as resolving based on radiographic evidence and was not judged to require surgical intervention by the neurosurgeon.  It was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All records were reviewed and considered by the Board.  There was no performance-based evidence from the record that the pseudomeningocoele condition significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the pseudomeningocoele condition and so no additional disability rating is recommended.

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 chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left sciatic radiculopathy condition, the Board unanimously recommends it as separately unfitting and recommends a disability rating of 10%, coded 8720 IAW VASRD §4.71a.  In the matter of the contended pseudomeningocoele condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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
Chronic Back Pain | 5243 | 20%
Left Sciatic Nerve Radiculopathy | 8720 | 10%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515 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, AR20150014956 (PD201402221)

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 30% 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 30% 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

PD-2014-02221