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AF | PDBR | CY2010 | PD2010 00479
Original file (PD2010 00479.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1000479
BRANCH OF SERVICE: Army  BOARD DATE: 20130702
Date of SEPARATION: 20060413


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (98G/Cryptologic Linguist) medically separated for low back pain (LBP) and right lower extremity (RLE) pain. In February 2003, he injured his back in a microbus rollover while he was deployed to Kuwait. The pain began radiating down his right leg in April 2003. Magnetic resonance imaging (MRI) showed right paracentral disc protrusion, causing right sided stenosis. Despite various injections and other interventions, 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 profile and underwent a Medical Evaluation Board (MEB). The LBP, with RLE radiculopathy, was forwarded to the Physical Evaluation Board (PEB) as failing retention standards IAW AR 40-501. The MEB also forwarded six other conditions (knee pain, shin splints, wrist pain, hyperlipidemia, high blood pressure and smoking) as meeting retention standards. The PEB found the LBP and the RLE radiculopathy unfitting, and rated them 10% each with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The six other conditions were all found to be not unfitting and therefore not ratable. The CI made no appeals, and was medically separated.


CI CONTENTION: “At VAMC MRI report done on 5/14/07 shows that there is bilateral facet arthropathy, mild to moderate at L4-L5 with very minimal central disc bulge noted which is consistent with Dr. K-- reports dated 3/28/05 and 6/7/05 that was done at the spine center of Colorado Springs, Colorado which state that a degenerate disk disease and degenerative facet at L4-L5. Also a radiologic examination report dated 7/28/05 that was done at Evans ACH at Fort Carson, Colorado states that facet joint at each level, most severe at L4-L5 level manifest by vacuum phenomenon on the right side. A lot of evidence showed a problem at L4-L5 level, that was included in the MEB findings report and later in VAMC reports, yet that was not considered in the decision of the MEB board. In addition, a 10% consideration for S1 root radiculopathy (sciatic nerve) that controls the lower extremities, despite reports confirming sensory loss and radiation pain into the right lower extremity, seems to be a low percentage considering the sensitivity of the area. I was also surprised to learn that the MEB board did not consider the injury as a combat related injury according to 26 U.S.C. 104. After reading the conditions for consideration under that code and my DD 214, I noticed I was serving in an imminent danger pay area for contingency operation from 20020915-20030521, which earned me the GWOT Expeditionary Medal, during that time is when my injury resulted which then resulted my medical chapter out of the service.”


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 ratings for the unfitting low back and RLE conditions are addressed below. No other conditions are within the defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for consideration by the Board for Correction of Military Records.
RATING COMPARISON:

Service IPEB – Dated 20060126
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain
 5243 10% Low Back Strain 5237* 10%* 20060922
Right Lower Extremity
 5243-8720 10% No VA Entry for Right Lower Extremity
No Additional MEB/PEB Entries
 Other x 2 20060922
Combined Rating: 20%
 Combined Rating: 40%*
Derived from VA Rating Decision (VA RD ) dated 200 70227 ( most proximate to date of separation )
* VA code and rating for the Low Back Condition was later changed, by a subsequent VARD dated 20081017


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertion that his injury should have been considered combat related. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to this matter. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB fitness and rating determinations, based on severity at the time of separation.

Low Back Pain (LBP). In 2003, the CI injured his back in a motor vehicle accident. MRI revealed right paracentral disc protrusion, with moderate neural foraminal stenosis and mild spinal canal stenosis. Over the course of several months, he was treated with many different treatment modalities, including epidural steroid injections. The CI did not elect to have surgery on his lumbar spine. Eventually, due to persistent LBP, a MEB was initiated. His MEB narrative summary (NARSUM) was dictated in January 2006. The MEB physical examination of his lower back was in November 2005. There was some tenderness to palpation (TTP) in the lumbar region, but no palpable spasm. Range-of-motion (ROM) was measured and is summarized in the chart below.

As noted above, the CI was medically separated from service in April 2006. Five months after separation, he had a VA Compensation and Pension (C&P) exam. He was in no acute distress. Gait and posture were normal. There was some tenderness in the back, but no evidence of radiating pain on movement. Muscle spasm was absent, and straight leg raise was negative. There was symmetry of spinal motion, with normal curvature of the spine. Thoracolumbar ROM was measured and is summarized below.

Thoracolumbar ROM
 MEB ~ 3 mos . Pre-Sep
(20060105)		 VA C&P ~ 5 mos . Post-Sep
(20060922)
Flexion (90 ⁰ is n ormal)
 65⁰ 80⁰
Combined (240 ⁰ is normal )
 180⁰ 180⁰
Comment
 Pain with motion P ain with motion
§4.71a Rating
 10% 10%

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. IAW VASRD §4.71a, a 10% rating is warranted for thoracolumbar flexion greater than 60 degrees but not greater than 85 degrees; or combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees. Therefore, the Board determined that a disability rating of 10% for the CI’s LBP condition was reasonably justified. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the LBP condition. The other VASRD codes that were considered did not result in a higher rating, since the service treatment record (STR) did not show sufficient evidence of a disabling lumbar spine condition which would justify a rating higher than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP condition.

Right Lower Extremity (RLE) Condition. The CI had a history of pain in the right leg. Electromyography performed in April 2005 was compatible with a right S1 radiculopathy. Right leg exam and neurologic exam in November 2005 were both normal. In the January 2006 MEB NARSUM, it was reported that he had decreased radicular pain in his right leg, but still had variable numbness along the entire length of the right leg posteriorly. At the September 2006 C&P exam, 5 months after separation, he was in no acute distress. Gait and posture were normal. Neurological examination of the lower extremities was normal. There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement.

Once again, the Board thoroughly reviewed all the evidence in the record. The Army PEB coded the RLE condition as 5243-8720, and assigned a disability rating of 10%. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the RLE condition. The other VASRD codes that were considered did not result in a higher rating, since the STR did not show sufficient evidence of a disabling RLE condition which would justify a rating higher than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the RLE 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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the RLE condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.


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, Radiating Low Back Pain
 5243 10%
Right Lower Extremity Radiculopathy
 5243-8720 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100426, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130016402 (PD201000479)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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