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AF | PDBR | CY2012 | PD 2012 01382
Original file (PD 2012 01382.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2012-01382
BRANCH OF SERVICE: Army  BOARD DATE: 20140430
SEPARATION DATE: 20090816


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52C/Utilities Equipment Repairer) medically separated for chronic back pain. In 2008, CI awoke with severe pain radiating to the left ankle. Diagnosed with low back pain (LBP), CI underwent conservative treatment but it offered only temporary relief. The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The condition, characterized as “low back pain”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (cervical degenerative disc disease and right ankle sprain) for PEB adjudication. The Informal PEB adjudicated “chronic back pain, evaluated analogous to lumbosacral strain” as unfitting, rated 20%, referencing the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Surgeries have not fixed the member, bigger problem has emerged as a result of combat injury.”


SCOPE OF REVIEW: The Board acknowledges the CI’s statement regarding the significant impairment with which his service-connected condition continues to burden 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, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board likewise acknowledges the CI’s implied contention for rating of his cervical degenerative disc condition which was determined to be not unfitting by the PEB and, emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended. 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 Service rating for the unfitting back and the not unfitting cervical spine conditions are addressed below. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review (such as combat relatedness or the non-surgical ankle) remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20090605
 VA - (1 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain 5299-5237 20% Degenerative Changes Of The Lumbar Spine With Neural
Foraminal Stenosis		 5242 40% 20090922
Left Lower Extremity Sciatic/Radicular Symptoms
Associated with Degenerative Changes of the Lumbar
Spine with Neural Foraminal Stenosis		 8599-8520 10%* STR
Cervical DDD Not Unfitting DDD of the Cervical Spine Post-Op C-6 Discectomy 5010 0% 20090922
C5-C6 Radiculopathy Involving The Right Ulna And Right
Medial Nerve Of The Right Upper Extremity Associated
With DDD of the Cervical Spine Post-Op C-6 Discectomy		 8515 10% 20090922
Right Ankle Sprain Not Unfitting No VA Entry
Other x 0 (Not in Scope)
 Other x 5 20090922
Combined: 20%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 91106 (most proximate to date of separation [ DOS ] )
* VARD dated 20100322 added this service-connected condition specifically based on STR and other evidence
ANALYSIS SUMMARY: This review was delayed as a result of non-receipt of requested records which included source documents necessary for determination of the CI’s status in regard to fitness and rating. However, the Board determined that there were sufficient records to proceed with the determination of fitness and rating. Reference to a spine examination performed on 22 September 2009 in a VA Compensation and Pension (C&P) examination review of medical records dated 22 February 2010 provided probative information relating to the VA examination one month post separation.

Chronic Back Pain. The service treatment record (STR) indicated that the CI noted LBP in October 2008 that began after getting out of bed one morning absent any trauma or known mechanism of injury. The pain radiated down to the left ankle. Pain medication and three epidural steroid injections into the back, relieved some of his pain for a short period of time, but failed to permanently resolve the pain. “The pain originated in his low back, with radiation to the left lower extremity qualified as a dull, shooting, aching sensation worsened with activity and improved somewhat with lying on his right side without myelopathy or neurologic deficit.”

“MRI of the lumbar spine was significant for degenerative disc disease with diffuse bulging and facet hypertrophy at L4-5 with mild right foraminal stenosis at L5, with a small left paracentral disc protrusion with some extension into the left foramen with facet arthropathy.” Magnetic resonance imaging of the lumbar spine on 10 February 2009 showed a small L5-S1 left paracentral disc protrusion with extension into the left neuroforamen (nerve outlet track). The commander statement dated 28 January 2008 indicated the CI was not physically capable to perform duties of a 52C Utilities Equipment Repairer. He could not carry heavy electronic equipment and test sets or combat gear and was unable to road march or conduct field missions. He was totally incapable of performing duties in a combat environment. A second commander’s statement dated 8 April 2009 noted the CI served as Charge of Quarters Runner with no limitations and worked approximately a 30 hour week unless attending medical appointments.

During the MEB narrative summary (NARSUM) dated 21 April 2009, there was tenderness to palpation on the left paraspinal muscles in the area of the S1 joint “with no palpable spasms or masses or tenderness over the posterior spinous processes and right paraspinal muscle structures.” Ranges of motion are noted in the table below.

He received an L3 profile . He was restricted from perform ing sit-ups; pushups ; mov ing with a fighting load at least two miles ; running; lifting greater than 20 pounds; no body armor or back pack or prolonged standing greater than 10 minutes.

 The PEB dated 5 June 2009 adjudicated the chronic back pain condition as unfitting and rated at 20% due to forward flexion of 55 degrees . Subsequently, the CI underwent a lumbar discectomy (surgery) of L5-S1 on the left on 22 June 2009 (2 weeks after the PEB) and went on convalescent leave until 6 July 2009. He was discharged from the Army on 16 August 2009. On 13 July 2011 (23 months post separation), he underwent a revision surgery.

There were no primary records available for the VA C&P exam performed a month after separation, however a VA C&P note with an opinion dated 22 February 2010 addressed the CI’s history and physical examination as follows:

On 2-10-09 Veteran had MRI evidence of lower lumbar degenerative changes with mild neural foraminal stenosis, and small L5-S1 left paracentral disc protrusion. He underwent discectomy of L5-S1 in June of 2009. Veteran’s symptoms of sciatica/radicular pain did get better but did not totally go away per veteran history. He did have a + Lasegue sign on PE and decrease ROM of the lumbar spine. He had normal lumbar X-ray done 9/22/09 and normal EMG (electrophysiological study) with no evidence of left L-S1 radiculopathy or left or right sciatic neuropathy or peripheral polyneuropathy. It is known that although surgery can fix the problem anatomically 20-30% of patients can have residual sciatic/radicular symptoms. Based on PE and history, it is least as likely as not (50/50 probability) veteran’s subjective symptoms of sciatica is caused by or a result of his lower lumbar degenerative disease follow discectomy, but there is no objective evidence of sciatica based on [a] normal EMG done 10/13/09.

Goniometric range-of-motion (ROM) and exam summary data were obtained from the VARD dated 6 November 2009 and are recorded in the table below.

The goniometric 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 ~ 5 Mo. Pre-Sep MEB ~ 3 Mo. Pre-Sep VA C&P ~ 1 Mo. Post-Sep *
Flexion (90 Normal) 60 55 40 /25 following repetitive motion
Extension (30) 20 15 25
R Lat Flexion (30) - 19 (20) 30/25 following repetitive motion
L Lat Flexion (30) - 19 (20) 25/15 following repetitive motion
R Rotation (30) 30 42 (30) 30
L Rotation (30) 30 42 (30) 30
Combined (240) UNK 170 180/150 following repetitive motion
Comment : Surgery 20090622 Rotati on: left greater than right Painful motion. Normal reflexes, strength and sensation. ROM limit ation after repetitive use charted above
§4.71a Rating 20 % 20 % 40 %
* Later VA exams documented similarly limited forward flexion ROMs (June 2011 at 28 degrees [30]; June 2012 at 25).
The Board directs attenti on to its rating recommendation based on the above evidence . The CI underwent a lumbar discectomy of L5-S1 on the left approximately 7 weeks prior to discharge , which was less than 3 weeks after his PEB determination . The most appropriate examination to rate t he CI’s disability at the time of separation was the VA C& P performed 5 weeks post separation. His ROM was limited following repetitive motion (IAW DeLuca) to forward flexion of 25 degree . This met the VASRD 40% criteria of forward flexion of the thoracolumbar spine 30 degrees or less. Furthermore, although the Board evaluates rating at the time of separation, the post separation VA examination ha d the greatest probative value since it was 3 months after the in- s ervice surgery , thereby permitting healing and sufficient recovery to have occurred. Therefore, the close temporal alignment o f the VA examination evidence with the date of separation is the Board’s definitive benchmark in its recommendations.

There was insufficient evidence for the Board to address whether the sciatic pain for which the VA determined there to be a 10% rating is unfitting or to rate the condition. An electromyogram performed on 13 October 2009, almost 2 months post separation, was reported as normal. Furthermore, the condition of sciatic pain, which was present prior to the surgery and was subjectively present post-operatively. Therefore, the Board additionally considered whether the residual sciatic radiculopathy warranted an additional disability rating; but, members agreed that the requisite link of the neuropathy with functional impairment was not in evidence. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic back pain condition, coded 5299-5242.

Cervical Degenerative Disc Disease. The Board’s main charge is to assess the fairness of the PEB’s determination that the cervical spine (neck) condition was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

STR s indicated the CI had a history of headaches, neck pain and shoulder pain with weakness with subsequent development of numbness and tingling of the right upper extremity in a C6 distribution when in theater in 2007. Evaluations indicated multi-level cervical disk bulges with contact with the cord at multiple levels and the CI underwent cervical spine surgery on 17  November 2008.

At the MEB NARSUM, cervical spine X-rays on 4 February 2009 demonstrated a minimal amount of arthritic spurring throughout the mid to lower cervical spine. At the time of the MEB, the CI had essentially no remaining arm symptoms aside from an occasional ache in the arm. Pain was rated as 0/10. Frequent headaches prior to surgery had diminished greatly and the CI stated he had no pain in the neck region. The profile was U1 and did not mention any neck or arm conditions. Limitations from the L3 profile including lifting and push-up restrictions may have overshadowed restrictions of the neck, but is speculative. The 28 January 2008 commander’s statement mentioned only the chronic back pain condition, while the 8 April 2009 commander’s statement recommended a MOS Medical Review Board (retention and retraining).

At the VA C&P exam performed a month after separation, there was no objective evidence of pain on motion. Function and ROM of the cervical spine was not additionally limited by pain, fatigue, lack of endurance, or incoordination after repetitive use. Radiographic imaging of the cervical spine revealed mild degenerative disc disease. The VA rated this exam at 0%. The cervical spine condition was not profiled or implicated in the commander’s statement and was adjudged by the PEB to be not unfitting.

The Board additionally considered if the residual C5-C6 radiculopathy (right hand symptoms) warranted additional disability rating; but, members agreed that the requisite link of the neuropathy with functional impairment was not in evidence especially in view of the report that indicated “he now has essentially no arm symptoms and an occasional ache in the arm” with a “pain rating as 0/10.”

After due deliberation, considering all of the evidence and mindful of the preponderance of evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the cervical degenerative disc disease condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.


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 LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5299-5242 IAW VASRD §4.71a. In the matter of the contended cervical degenerative disc disease, the Board unanimously recommends no change from the PEB determinations 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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Low Back Pain 5299-5242 40%
COMBINED 40%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120802, 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 , AR20140020584 (PD201201382)
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 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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