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AF | PDBR | CY2012 | PD2012 01769
Original file (PD2012 01769.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE NUMBER: PD1201769
BRANCH OF SERVICE: Army  BOARD DATE: 20130426
Separation Date: 20060602


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B20/Infantryman), medically separated for a lumbar spine condition. The CI presented with atraumatic low back pain (LBP) and lumbar spine degenerative disc disease (DDD). Despite two extensive spine surgeries, physical therapy, chiropractic, and orthopedic evaluations the CI failed 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 “Degenerative Disc Disease L5-S1 following Anterior Lumbar Interbody Fusion and Posterior Laminectomy and Discectomy” to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated chronic LBP status post (s/p) interbody fusion and posterior laminectomy and discectomy as unfitting, rated 10%, presumably based on the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and he was medically separated.


CI CONTENTION: “I respectfully request a review and change in status as it relates to my medical discharge from the Army. The initial evaluation was based on incomplete and flawed data. While in Iraq, my Humvee was blown up and I was thrown clear (about 10m). hitting my head and back. At this time training and adrenalin coupled with hostile fire did not allow for a proper on sight [sic] evaluation of my injuries and condition. It wasn't until returning to the states that some of the problems surfaced. At Fort Hood I underwent 2 back surgeries, one through the abdomen and the latter through the back. Although the operations were successful, I was still left with severe back pain and frequent headaches. Not all medical issues are of a physical nature. The PTSD has left me with severe mood swings, short temper and a quickness to go from calm to a rage in a matter of seconds. The PTSD Has triggered flashbacks and night tremors which has heightened a level of friction between my family and myself. One of the triggers to the flashbacks is smell. I can still smell death, burning flesh and gun powder while doing a simple act like cutting the grass. This results in quite a few panic attacks on a daily basis and has happened as recently as 2 days ago. My sleeping problems can be best described as intermittent. When sleep does arrive, I am not able to sleep through the night. It is more in an increment of 2 hours. I continually snore and stop breathing thereby resulting in my having to use a sleep apnea machine for the rest of my life in order to prevent dying in my sleep from not breathing. With regard to the TBI (Traumatic Brain Injury), I have also been diagnosed with this which results in a lack of concentration or thought process (forming clear thoughts) are at least minima [sic]. I have also had problems sometimes with simple math comprehension and recognition of people and places from my childhood. Long-term memory has been affected and facts are jumbled resulting in my having to write thoughts, ideas and math figures down in order to remember them. Short term memory has been affected as well.”

The CI also stated, “Because of all of the above reasons and the constant pain in my back and head. I have had to miss certain family and business functions due to the medication that I take to relieve this pain. It is hard to explain to 3 small children (ages 7, 5, 2) why ‘daddy can't play with them or go to school activities with them. I would like to take this opportunity to thank you in advance for your favorable and quick response in my request for a status change from medical discharge to a medical retirement.”


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 rating for the unfitting lumbar spine condition is addressed below. No additional contended conditions (posttraumatic stress disorder [PTSD], traumatic brain injury [TBI], and sleep apnea) are within the DoDI 6040.44 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 future consideration by the Army Board for Correction of Military Records.


RATING COMPARISON :

Service PEB – Dated 20060503
 VA - (At Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain status post Interbody Fusion and Posterior Laminectomy and Discectomy 5241 10% Degenerative Disk Disease status post Two Back Surgeries with Residual Scars 5242 40% 20060523
No Additional MEB/PEB Entries
 Other Conditions x 3 20060523
Combined: 10%
 Combined: 60%
VARD 20060619 closest to date of separation (DOS).


ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of 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.

Chronic Low Back Pain status post Interbody Fusion and Posterior Laminectomy and Discectomy Condition. Range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, is summarized in the chart below.

Thoracolumbar ROM
(Degrees)
 MEB NARSUM ~ 1.5 Mo. Pre-Sep
ROM ~3.7 Mo. Pre-Sep
 VA C&P ~11 days Pre Sep
Flexion (90 Normal)
 45 ( 40 43 45 avg 43 ) 30 * , 20 with repeated motion
Extension (30)
 10 ( 10 12 12 avg 11 ) 5
R Lat Flexion (30)
 20 ( 23 24 22 avg 23 ) 10
L Lat Flexion (30)
 25 ( 23 22 24 avg 23 ) 10
R Rotation (30)
 30 ( 30 32 33 avg 32 ) 10
L Rotation (30)
 30 ( 34 35 35 avg 3 5 ) 10
Combined (240)
 165 75
Comment
 ROM done 20060213 – 3.7 mos pre sep ; AROM pain limited ; negative straight leg raise (SLR) ; mild paraspinal muscle spasm; motor/sensory/ reflexes intact *Significantly restricted , repeated motion causes 10 degree reduction of flexion ; ROM stiffness, pain at end of ROM ; SLR at 70 on left, 90 on right; no neurologic deficit in lower extremity, normal sensation, motor power, and reflexes all over; no ambulatory aids
§4.71a Rating
 20 % 40 %

The CI had chronic LBP and underwent chiropractor care without improvement. The CI was placed on Quarters twice in March 2005 for LBP. A lumbar spine magnetic resonance imaging (MRI) revealed L5-S1 central disc protrusion. The CI was evaluated and treated by physical therapy (PT); however, this treatment failed to resolve the LBP. In October 2003, the CI underwent an anterior lumbar interbody fusion surgery. The CI had episodes of pain relief; however, pain began radiating into the right leg. The CI required a decompression and laminectomy surgery in January 2006 and this resolved the right leg pain; however, the LBP remained. The CI was placed on a permanent L3 Profile for lumbar fusion. The commander’s statement indicated that the CI was limited to six hours of duty daily and he was not able to perform his MOS duties. The MEB narrative summary (NARSUM) examination approximately a prior to separation noted mild to moderate intermittent LBP. The MEB examiner relied on ROM done at a PT evaluation in February 2006. The MEB NARSUM physical exam findings are summarized in the chart above. The VA Compensation and Pension (C&P) exam approximately 11 days prior to separation documented LBP that radiated to his left leg and that he had an inability to bend, an inability to lift, and an inability to do any strenuous activity. The C&P physical exam findings are 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. While the CI reported pain radiating into his left leg and he had a bilaterally positive straight leg raise (SLR) test at the C&P examination, his neurologic examination was normal and there was no physical impairment related to a radiculopathy. 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 Board directs attention to its rating recommendation based on the above evidence. The PEB coded the chronic LBP s/p interbody fusion and posterior laminectomy and discectomy condition 5241 spinal fusion and rated 10%. The VA coded the DDD s/p two surgeries with residual scars 5242 degenerative arthritis of the spine and rated 40%. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “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.” The MEB NARSUM was a month prior to separation and the MEB examiner relied on ROM measurements from a PT exam done approximately 3 months prior to separation. The VA exam was 11 days prior to separation. The Board adjudged that the C&P examination was closer to, but still prior to, separation and therefore had the higher probative value. The VA examiner documented a significantly restricted ROM flexion of 30 degrees and further noted that repeated motion caused an additional 10-degree reduction in flexion. This examination met the criteria for 40% rating with “forward flexion of the thoracolumbar spine 30 degrees or less.” 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 LBP s/p interbody fusion and posterior laminectomy and discectomy 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. In the matter of the chronic LBP s/p interbody fusion and posterior laminectomy and discectomy condition, the Board unanimously 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 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 status post Interbody Fusion and Posterior Laminectomy and Discectomy 5241 40%
COMBINED
 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120926, 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 AR20130010302 (PD201201769)


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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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