RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20020326
NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200248
BOARD DATE: 20130109
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (31L20/Wire System Team Chief Installer),
medically separated for a residual lumbar radiculopathy. He did not respond adequately to
operative treatment and was unable to perform within his Military Occupational Specialty
(MOS), meet worldwide deployment standards or meet physical fitness standards. He was
issued a permanent L3 profile underwent a Medical Evaluation Board (MEB). Residual lumbar
radiculopathy w/motor deficit & sensory deficit, degenerative lumbar disc disease (DDD) and
status post (s/p) L5‐S1 were forwarded to the Physical Evaluation Board (PEB) as medically
unacceptable IAW AR 40‐501. No other conditions appeared on the MEB’s submission. The
PEB adjudicated the low back condition as unfitting, rated 20%, with application of the
Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was
medically separated with a 20% disability rating.
CI CONTENTION: “It is my firm opinion that the PEB failed to adequately review all information
from the MEB and did not use the proper evaluation tools. Thus this resulted in a lower rating
by the PEB. The PEB did not consider the reduced motor deficit and sensory during the
evaluation. The was considered under the VA rating of May 22, 2002. (continued) I am
requesting a complete review of my records and that the board review the VA rating the MEB
Board Plus Addendum and the PEB Board results. I further more request that the board review
that the MEB found that I had occasional paresthesias of left foot, and enlarged and swollen S1
nerve root which was not covered in the PEB. At the time of Discharge I was considered unfit
for duty by the PEB, but due to the failure to consider all of the evidence and the use of proper
rules I was denied service retirement. Furthermore I do not believe that the PEB fairly
adjudicated my case, I have personal knowledge of people with the same disability that were
medically retired. One was from the Air Force and the other from the Navy. I have continually
had complications with this condition (See Section 4 and attachments). As recently as 2008 I
had to undergo surgery again to correct the pain related to the previous actions. While this
relieved some of the pain, I continue to have pain while seated and while standing. I have
nerve damage in my left leg. The VA recently informed me that I would not regain any
additional dexterity in that limb and that the nerve damage is permanent. I expect the PDBR
find that the PEB failed to rate my disability correctly under the VA Guidelines and used the
improper diagnostic code 8521 when they should have used diagnostic code 5293.
Furthermore I expect the PDBR to find that I should have been placed on the Permanent
Disability Retirement List with a rating 60%. I also expect to be notified of the PDBR results as
well as the determination of the Department of the Army in a timely and efficient manner.”
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. 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 the Correction of Military Records.
RATING COMPARISON:
8521
20%
Code
Rating
Lumbar
DDD
Code
Rating
5010‐5293
60%*
Exam
STR
1991‐
2001
VA ( STR ) – All Effective Date 20020327
Condition
Residuals, Herniated Nucleus Pulposus,
s/p Microdiscectomy w/ DDD and
Radiculopathy
Not Service‐Connected x 2
Combined: 60%
Service PEB – Dated 20011217
Condition
Residual
Radiculopathy,
S/PL5‐S1 Discectomy
No Additional MEB/PEB Entries
Combined: 20%
*Subsequent and only other VARD dated 20030826 indicates no change in rating
ANALYSIS SUMMARY: The Board acknowledges the CI’s opinion that the PEB failed to review all
the information from the MEB and used improper coding, with the implication that the
disability rating was lower than that which was assigned by the VA. It must be noted for the
record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions
in reference to allegations regarding suspected service improprieties. The Board’s role is
confined to the review of medical records and all evidence at hand to assess the fairness of PEB
disability ratings and fitness determinations as elaborated above. The Board also acknowledges
the sentiment expressed in the CI’s application regarding the significant impairment with which
his service‐incurred condition continues to burden him. The Board wishes to clarify that it is
subject to the same laws for disability entitlements as those under which the Disability
Evaluation System (DES) operates. The DES 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 (DVA), operating under a different set of laws (Title 38, United
States Code). The Board evaluates DVA evidence proximal to separation in arriving at its
recommendations, but its authority resides in evaluating the fairness of DES fitness decisions
and rating determinations for disability at the time of separation.
Residual Lumbar Radiculopathy. The CI had long standing low back pain (LBP) since 1992 after a
lifting injury which had been treated conservatively with medications and physical therapy. In
October 2000 he had an exacerbation of his back pain while performing physical training with
radiation of pain to his left leg and foot which worsened to the point of requiring a cane to walk
and having neurologic deficits consistent with a herniated disc. Magnetic resonance imaging
(MRI) confirmed a L5‐S1 herniated disc and the CI opted for operative care with a L5‐S1
microdiscectomy, December 2000. One month post‐operatively he was doing well without
radicular pain, however he had a reoccurrence of and persistence of back, left leg and foot pain
3 months post‐operatively and residual left lower extremity weakness, without intervening
injury. Six months post‐operatively a temporary profile was written in June 2001 that
superseded the permanent profile of January 2001 for 30 days which was more restrictive with
lifting limitations of up to 20 pounds and no Army Physical Fitness Test. The permanent profile
had lifting restrictions up to 40 pounds and allowed an alternate physical training test in
addition included; no riding in tactical vehicles, no sit‐ups, and physical training at own pace
and distance. The CI was referred to an MOS/Medical Retention Board (MMRB) for
consideration for cross‐training; however the MMRB decision was that the CI did not meet
Army retention standards and referred to an MEB. The commander’s statement corroborated
the medical condition and limitations and additionally documented he was no longer able to
perform many of the tasks of his MOS and no longer able to wear his personal equipment.
At the MEB exam the CI reported continued intermittent LBP referred to as sciatica and spasms
as well as continued residual weakness of his left lower extremity with paresthesias of the left
foot. He also reported new onset intermittent right ache similar to the left. The MEB physical
2 PD1200248
exam demonstrated a well healed incision in the lower back, left calf muscle bulk appeared to
be about 7mm smaller in circumference compared to the right side, motor strength was 5/5
except 4+/5 strength in the left quadriceps, tibialis anterior, gastrocnemius and extensor
hallicus longus, without any pain, left S1 hypoesthesia and negative straight leg raise
(neurologic sign for disc disease). The exam was silent to gait, posture and spine contour. MRI,
of the lumbosacral spine performed in June 2001 revealed previous laminotomy defect at left
L5‐S1 and an enlarged swollen left S1 nerve root, but no recurrent disc herniation or residual
fragment. Electromyogram and nerve conduction velocity studies of lower extremities also
from June 2001 revealed findings consistent with a persistent left S1 radiculopathy with an
absent left ankle reflex. The treating MEB neurosurgeon examiner diagnosed residual lumbar
radiculopathy, opined he was not a surgical candidate and conservative management was
recommended from then on. He further opined that due to the persistent deficits as well as
the chronic pain complaints; the patient was unlikely to be able to meet Army retention
standards. There was no VA Compensation and Pension exam, and the VA relied on the service
treatment record for its rating recommendation.
The Board directs attention to its rating recommendation based on the above evidence. The
2002 VASRD coding and rating standards for the spine, which were in effect at the time of
separation, were changed to the current §4.71a rating standards in 2004. For the reader’s
convenience, the 2002 rating code under discussion in this case is excerpted below.
5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with: sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings appropriate
to site of diseased disc, little intermittent relief ………………..….……….……60
Severe; recurring attacks, with intermittent relief ……………..…….………….40
Moderate; recurring attacks ……………………………………………............….......20
Mild ……………………………………………………………..…………….….…………………….10
Postoperative, cured ……………………………………………..……………....…………….0
The PEB and VA chose different coding options for the condition which had significant
implications on the rating for the Board to consider. The PEB assigned a rating of 20% with
code 8521 (External popliteal nerve [common peroneal] paralysis of) IAW §4.124a—Schedule of
ratings–neurological conditions and convulsive disorders for moderate in consideration of the
residual motor deficits, and sensory deficits of the S1 radiculopathy. The Board notes this code
describes the residual motor and a sensory deficit of the lower leg however does not include
the quadriceps motor deficit of the upper leg. The Board agreed the more clinically appropriate
peripheral code to describe all the motor deficits in this case is the sciatica code. The VA
assigned a rating of 60% with code 5293 (Intervertebral disc syndrome) for continued residual
symptoms of lumbar radiculopathy with motor deficit and sensory deficit, muscle atrophy, and
DDD disease which was consistent with §4.71a. The action officer notes the most proximate
clinical data in totality supports an S1 radiculopathy without evidence of a herniated nucleus
pulposus and clinically could manifest as the residual symptoms in this case which were
identified in the MEB that contributed to preventing the CI’s activity. Board members
concluded therefore that coding a neurologic code rather a musculoskeletal code is therefore
more clinically appropriate. The Board considered the 8620 and the 8720 code (paralysis of
sciatica) for its clinical specificity to the peripheral nerve pathology in evidence IAW §4.123
neuritis or §4.124 neuralgia. The VASRD specifies §4.123 is “characterized by loss of reflexes,
muscle atrophy, sensory disturbances, and constant pain, at times excruciating,” is to be rated
on the scale provided for injury of the nerve involved, with a maximum equal to severe,
incomplete, paralysis. The maximum rating which may be assigned for neuritis not
characterized by organic changes referred to in this section will be that for moderate, or with
sciatic nerve involvement, for moderately severe, incomplete paralysis. The Board notes the
3 PD1200248
evidence reflects the organic changes consistent with §4.123 and the pain ranged from 2 to 6 of
10 in intensity which was intermittent not constant and therefore the Board agreed the
evidence did not approach the severe criteria. The Board acknowledges the residual pain
component evidence meets the moderate criteria and approaches the moderate severe
criteria. The challenge before the Board is the lack of evidence with regards to post surgical
functional impairment from the lower extremity weakness. The Board recognizes while the pre
surgical evidence supports use of a cane for ambulation, the record is silent to this evidence
post surgery in addition it is silent to gait, posture or spasm. The Board acknowledges that any
evidence up to 12 months after separation that may give insight into the CI’s functional
impairment due to the residual weakness was not available in the evidence before it, and could
not be located after the appropriate inquiries. However, while the Board recognizes the
temporary profile was for only 30 days and then reverted back to the permanent profile it is 6
months post‐operative and is more restrictive and gives some indication the CI’s functional
impairment is worse. Therefore the Board agreed the disability meets the moderate severe
criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3
(Resolution of reasonable doubt), the Board recommends a disability rating of 40% for the
residual lumbar radiculopathy 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 residual lumbar radiculopathy condition, the Board
unanimously recommends a disability rating of 40% coded 8520 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
Residual Lumbar Radiculopathy, Degenerative Disc Disease S/P L5‐
S1 Discectomy
VASRD CODE RATING
8520
COMBINED
40%
40%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120307, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
4 PD1200248
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXX, AR20130001359 (PD201200248)
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
XXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
5 PD1200248
CF:
( ) DoD PDBR
( ) DVA
6 PD1200248
AF | PDBR | CY2009 | PD2009-00218
The condition was determined to be medically unacceptable and the CI was referred to the Physical Evaluation Board (PEB), found unfit for continued military service, and separated at 20% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Air Force and Department of Defense regulations. Additional 5 degrees loss ROM with repeated motion; 5/5 motor; negative straight leg raise; decrease in sensation to pinprick and light touch on left leg and great...
AF | PDBR | CY2011 | PD2011-01062
SCOPE OF REVIEW : The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; and, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” In addition to a review of the ratings for the unfitting conditions, all of the conditions requested for consideration meet the criteria prescribed in...
AF | PDBR | CY2011 | PD2011-00823
However both the NARSUM and the treatment record document the radicular pain and weakness continued at the same level of severity after the second surgery and at least until the time of the MEB NARSUM in April 2006. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record VASRD CODE RATING 20% 10% 30% 5243 8620 COMBINED XXXXXXXXXXXXX, DAF President Physical Disability Board of Review 6 PD1100823 SFMR‐RB MEMORANDUM FOR Commander, US Army Physical Disability...
AF | PDBR | CY2013 | PD 2013 00200
The examination noted bilateral lumbar muscle tenderness and limited range-of-motion (ROM) and reported a diagnosis of “acute lumbosacral strain/sprain with (+) [right] SLR test.” The permanent (L3) profile listed the diagnosis as back pain, but also with herniated disc (HNP) with radiculopathy, and severely restricted the CI from activities. The VA C&P examination, a month after separation, noted a positive straight leg raise test in the right leg (indicative of radiculopathy),(4/5)...
AF | PDBR | CY2013 | PD-2013-01739
The Board considered the CI’s history of significant back pain with muscle spasm and radiation of pain with mild weakness and decreased sensation of the right lower leg. However, notes in the STRs proximate to separation indicated daily use of a muscle relaxant medication and later evidence in record suggests episodes of muscle spasm continued, consistent with the lumbar spine abnormalities noted on MRI.Board members consensus was that the totality of evidence in record supports the 20%...
AF | PDBR | CY2009 | PD2009-00105
The other three conditions were adjudicated as not unfitting and the CI was medically separated with a combined disability rating of 20%. Since combining the PEB’s two 10% ratings into a single 20% rating would be of no total benefit to the CI, the Board sees no reason for recommending this coding option. He also states that the majority of his discomfort is back pain related and not related to leg pain.’ The VA rating examiner documented a normal motor examination but did not detail a...
AF | PDBR | CY2009 | PD2009-00005
CI was referred to the PEB, found unfit and separated at 20% disability. The Informal PEB determined he was unfit for continued military service and he was then separated with a 20% disability for 5237 Lumbar Radiculopathy, Low Back Pain status-post L5-S1 Diskectomy times two using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Navy and Department of Defense regulations. Using an evaluation completed one month prior to the time of separation from the Navy,...
AF | PDBR | CY2011 | PD2011-00697
RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW BRANCH OF SERVICE: ARMY SEPARATION DATE: 20090312 NAME: XXXXXXXXXXXXXXX CASE NUMBER: PD1100697 BOARD DATE: 20130124 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a troop unit active drilling National Guard CPT/O-3 (15A00/Chinook Pilot), medically separated for degenerative arthritis lumbar spine and left lower extremity S1 radicular pain. The PEB and the VA...
AF | PDBR | CY2009 | PD2009-00725
During the MEB exam on 5 June 2002 five months prior to separation the CI still complained of occasional back pain, some pain in his left foot, occasional left leg pain, and left lower leg numbness. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5295, IAW VASRD 4.71a. I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the Physical Disability...
AF | PDBR | CY2009 | PD2009-00419
The CI had symptoms of myelopathy in all four extremities. At this time the CI had symptoms of right upper extremity radiculopathy. The diagnoses in his finding of unfitness were cervical spondylotic myelopathy status post spinal fusion C3-6, rather than cervical spondylosis status post spinal fusion, VASRD code 5241, rated at 20%; right (dominant) upper extremity motor and sensory radiculopathy associated with cervical spondylotic myelopathy status post spinal fusion C3-6, VASRD code...