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AF | PDBR | CY2012 | PD2012 01435
Original file (PD2012 01435.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD12001435  SEPARATION DATE: 20050906
BOARD DATE: 20130409


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army Reserve SGT/E-5 (92A/Supply Specialist), medically separated for low back pain (LBP). The CI initially injured his back while working at his civilian job and had increased symptoms during preparation for deployment in March of 2003. The CI was separated from Active Duty on 14 March 2004 but was retained on Reserve status where he received physical therapy until separation from the Reserves on 6 September 2005. The LBP condition could not be adequately rehabilitated with treatment 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 MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the LBP condition as unfitting, rated 0%, with application of the Department of Defense Instruction (DoDI) 1332.39 and US Army Regulation (AR) 635-40, Appendix B-39. There was no mention of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and he was medically separated with a 0% disability rating.


CI CONTENTION: “I was retiree for Medical Board for my Back cond. but I don’t know the percent.”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The unfitting LBP condition meets the criteria prescribed in DoDI 6040.44 for Board purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records.


RATING COMPARISON:

Service IPEB – Dated 20030925
 VA (17 Mos. Post-Separation) – All Effective Date N/A
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain
 5299-5295 0% HNP of L5-S1 with Extrusion with Left S1 Impingement and L4-L5 Disc Bulge, Moderate to Severe DDD of the Lumbar Spine, Lumbar Myositis 5243 NSC 20070126
Left Leg L5-S1 Radiculopathy 8599-8520 NSC 20070126
Combined: 0%
 Combined: NSC, Not Aggravated by Service


ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for disability at the time of separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Low Back Pain. The goniometric range-of-motion (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
MEB ~ 25 Mo. Pre-Sep
 VA C&P ~ 17 Mo. Post-Sep
Flexion (90⁰ Normal)
‘Full forward motion’
 65° (64)
Ext (0-30)
‘ Full ’
 20° (18)
R Lat Flex (0-30)
‘Full’
 20° (22 )
L Lat Flex 0-30)
‘Full’
 20° ( 22 )
R Rotation (0-30)
25° ( 24 )
L Rotation (0-30)
25° (24)
Combined (240⁰)
175°
Comment
 No mention of goniometer; normal gait, normal lumbar spine curve, normal musculature, no spasm; able to walk on heels and toes; 3 Waddell’s: pain with axial loading, distracted seated SLR, pain with simulated rotation; neurologically intact; painful motion in STR Pain at endpoints; goniometer used to measure ROM; antalgic gait but later says normal; normal spine contour weakness of LLE, tenderness and spasm at L4-5 and S1, pain with motion; no fatigue, weakness or lack of endurance; mild calf atrophy; absent PP & LT L4-5 leg; motor & DTRs normal
§4.71a Rating
 10% with painful motion 10%
invalid font number 31502
At the MEB narrative summary (NARSUM) exam ination , approximately 25 months prior to separation, the CI reported pain in his low back that appeared to be uncomplicated and nonradicular . The physical exam findings are summarized in the table above. Although this examination was silent on the presence of painful motion, the service treatment record (STR) includes multiple progress notes documenting painful motion. Magnetic resonance imaging ( MRI ) performed in April 2003 showed a left posterior L5-S1 herniation and left S1 nerve root impingement, moderate to severe degenerative disc disease (DDD) , and a posterior L4-L5 disk bulge. A t a neurosurgical consultation 4 months later in December 2003 , the CI reported continued but improved back pain and the neurosurgeon assess ed his cond i tion as L5- S1 left herniated nucleus p ulposus (HNP) and left S1 root compression with radiculopathy. No physical examination findings were document ed. A repeat MRI in June 2006 noted the L5-S1 herniation abutting the S1 nerve roots bilaterally but more prominent on the left and bilateral neuroforaminal narrowing. Also noted were mild posterior disc bulges at T11-12 and L4-5 and straightening of the lumbar lordosis that could have been due to muscle spasm or position. Treatment notes from 2003 and 2005 document continued symptoms. Nerve conduction stud ies (NCS) and electromyogram ( EMG ) performed in November 2006 noted findings suggestive of a motor-sensory peripheral neuropathy but no diagnostic evidence for a lumbosacral radiculopathy. At the VA Compensation and Pension (C&P) exam approximately 17 months prior to separation, the CI reported constant LBP with sharp pain and numbness radiating to the left hip, posterior thigh , and posterior calf to the dorsal foot that was aggravated by coughing and sneezing. He repo rted “no strength ” in his foot or toes. The physical examination is summarized in the chart above.

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component noted on the C&P examination has no functional implications . All muscle strength and reflex examinations were normal. There was no evidence of a radiculopathy on the NCS and EMG. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

The 200 3 VASRD coding and rating standards for the spine, which were in effect at the time of MEB NARSUM and PEB adjudication , were changed to the current §4.71a rating standards on 26 September 2003. The 200 3 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. The current VASRD with the General Rating Formula for Diseases and Injuries of the Spine that includes, “ With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” was in effect when the CI separated from the Reserves in 2005. Therefore, the Board’s rating recommendation will be based upon the current VASRD.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic LBP condition analogous to the 5295 lumbosacral strain code from the 2003 VASRD. Although the DA 199 mentioned characteristic pain on motion, which supports a 10% disability rating using either the 2003 or the current VASRD, the PEB assigned a 0% rating. The VA determined that neither the back pain nor the left leg radiculopathy was service-connected or service aggravated. While there is a discrepancy between the ROM documented in the MEB NARSUM and C&P examinations, both examinations support a 10% rating if documentation of painful motion from the STR is included with the NARSUM examination. It appears that a goniometer was not used for the NARSUM examination and this could explain the differing ROMs documented. Alternatively, the limitation of ROM may have increased over time. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% 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. As discussed above, PEB reliance on DoDI 1332.39 and US Army Regulation (AR) 635-40, Appendix B-39 for rating the LBP condition was operant in this case and the condition was adjudicated independently of that instruction and regulation by the Board. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5243 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Low Back Pain
 5243 10%
COMBINED
 10%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120619, 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 AR20130009619 (PD201201435)
1. 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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

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.

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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