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AF | PDBR | CY2013 | PD-2013-01913
Original file (PD-2013-01913.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-01913
BRANCH OF SERVICE: Army  BOARD DATE: 20150609
SEPARATION DATE: 20050924


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Combat Engineer) medically separated for lower back. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “chronic lower back pain…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated “chronic low back pain…” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “I the veteran have been founded AJS unemployability with Permanent and total. It is my prayer that the board see what V.A. saw and award 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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


 RATING COMPARISON :

IPEB – Dated 20050718
 VA* - (~1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain… 5241 20% Residuals, Status Post L4-L5 Fusion with Scar and Radiculopathy Left Leg (Also Claimed As Sciatica) 5241-5243 40% 20050919
Other MEB/PEB Conditions x 0
 Other x 3
RATING: 20%
 RATING: 50%
* Derived from VA Rating Decision (VA RD ) dated 200 51109 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY:

Chronic Low Back Pain. The narrative summary notes the CI reported the onset of low back pain (LBP) without specific incident in August 2003. Notes in the service treatment record (STR) indicate the LBP radiated to the left lower extremity (LLE) with numbness and tingling of the thigh. Conservative treatment did not resolve the pain and lumbar magnetic resonance imaging (MRI) on 24 October 2003 noted degenerative disc disease (DDD) and spinal arthritis with a diffuse bulge of the L4-5 disc, without spinal stenosis or nerve impingement. Orthopedic evaluation on 13 January 2004 noted decreased light touch in the S1 nerve root (sciatica) distribution and a positive straight leg raise (SLR) on the left. A computed tomography scan was negative for vertebral fracture and the orthopedic specialist recommended an MOS Medical Retention Board (MMRB). Notes in the record documented letters of support for retention in a different MOS by the CI’s co-workers, but the MMRB recommended the CI be referred for an MEB and the recommendation was approved. The CI’s symptoms were refractory to non-operative management and he underwent lumbar fusion surgery (L4-5) on 10 September 2004. Following the surgery the CI was placed on 40 days convalescent leave, during which time he participated in outpatient physical therapy (PT). An MEB in process was terminated to allow the CI the opportunity for maximal medical improvement following the surgery. The CI was recuperating and an orthopedic visit on 5 January 2005 noted no pain or other issues at the time and noted the CI “would like to change his MOS” and the orthopedic specialist noted this on a profile dated the same day. At a visit 1 March 2005 the CI reported increased LLE pain and decreased sensation, with no improvement in his back pain. A profile date 29 March 2005 continued to indicate the CI needed another MMRB. Repeat lumbar MRI on 20 April 2005 noted the surgical fusion and DDD at L5-S1, but there was no evidence of disc herniation, or spinal canal or neuroforaminal stenosis. The CI continued taking pain medication and a primary care visit on 28 April 2005 indicated “to use cane prn.” An orthopedic follow-up visit on 1 June 2005 noted LBP radiating down the LLE with normal knee and ankle reflexes, but a positive SLR on the left (SLR at 70 degrees on left). An MEB was initiated in June 2005.

At the MEB examination on 2 June 2005, 4 months prior to separation, the CI reported radiating LBP that had improved somewhat since using the cane. The MEB physical exam noted an antalgic gait and use of a cane. There was TTP over the surgical site. Back range-of-motion (ROM) was flexion of 50 degrees (normal 90), extension of 10 degrees (normal 20), and side bending of 10 degrees bilaterally (normal 30). There was an equivocal right and positive left SLR, with decreased sensation of the lateral leg and foot, and normal strength bilaterally. PT ROM was measured on 20 June 2005 and noted flexion of 20, 20, and 23 degrees, extension of 17, 20, and 20 degrees; left lateral flexion of 18, 20, and 20, right of 25, 24, and 23; left rotation of 20 times 3, and right of 37, 34, and 35 (normal 30).

At the VA Compensation and Pension (C&P) examination on 19 September 2005, a month prior to separation, the CI reported LBP with LLE radiation. The CI denied any right LE symptoms. The examiner noted “there are no other associated features except pain and burning down the left leg everyday (sic).” The exam noted the CI was using a cane and walked with a limp favoring the left. There was TTP of the lower back with lumbar ROM of flexion 45 degrees and combined ROM of 195 degrees (normal 240), with painful motion and positive SLR on the left. Strength, sensation, and reflexes of the bilateral LEs were normal.

A second VA C&P Spine examination was performed on 10 April 2006, 7 months after separation, in response to the CI’s appeal of the VARD. The CI reported chronic LBP that radiated to the LLE with sitting, with LLE weakness, without flare-ups. He was using narcotic pain medication, but reported it provided no benefit. The CI was using a cane and reported using a back brace, but did not have it on at the exam. The exam noted an antalgic gait and use of a cane. The CI stood with a forward flexed posture of 25 degrees. The CI was unable to walk on heels or toes. Thoracolumbar ROM was reported as flexion of 25 to 35 degrees, decreased to 27 degrees with 2 repetitions, extension from 0 to 10 degrees, with left and right lateral flexion and rotation of 2 degrees or less. There was painful ROM with all ROM noted. The examiner noted positive SLR on the left with decreased vibration sense, but intact sensation to light touch and sharp stimuli. Strength of the LLE was noted as 4+/5 hip and knee flexion and 4/5 ankle flexion. Reflexes were present and equal throughout.

According to a memorandum by the US Army Physical Disability Agency (USAPDA) dated 30 July 2007, the CI had requested a review of his disability rating. The CI submitted documentation from the VA subsequent to separation. The USAPDA noted the findings of the MEB exam and also noted no electrodiagnostic (EMG/NCV) evidence of radiculopathy was submitted and recommended no change to the PEB adjudication.

The Board direct ed attenti on to its rating recommendation based on the above evidence . The PEB rated the back condition 20%, coded 5241 (Spinal fusion). The initial VARD fo r vocational rehabilitation entitlement rated the back condition 20% based on service medical records. The VARD dated 9 November 2005 rated it 40%, coded 5241-5243 (intervertebral disc syndrome status post lumbar fusion) . The VARD on 16 May 2006 continued the 40% rating of the back condition and also rated the LLE radiculopathy 10%, coded 8599-8520 (analogous to incomplete paralysis of the sciatic nerve) . The VARD stated that the 40% rating of the back condition was based on findings in the “service medical records which shows incapacitating episodes between 4 and 6 weeks during the past 12 months (sic).” The Board re viewed the evidence proximate to separation-the MEB and PT ROM for the MEB exams and prior to separation and after separation C&P exams. The MEB and prior to separation C&P exams support a 20% rating based on thoracic lumbar ROM, while the PT ROM and after separation C&P exams support a 40% rating, based on current VASRD rules for rating the spine in effect at the time of separation. The Board noted that the USAPDA review in 2007 did not recommend any change to the PEB’s adjudication. However, the Board considered that the PEB and USAPDA did not refer to the prior to separation PT ROM evaluation in its decision. The Board noted that the ROM values at the after separation C&P examination were more consistent with the ROM documented by PT. The worse ROM on alternating exams may have been due to pain, and PT noted that ROM was “pain limited.” However, the Board had some concerns for the validity of the extreme ROM values noted by the after separation C&P examiner; because there was no explanation provided for lateral flexion and rotation of 2 degrees or less bilaterally and there was no muscle spasm noted. The Board deliberated the probative value to provide the after separation C&P exam findings. The Board considered that the CI had desired to remain in the military and was requesting a change in MOS at the time that he began to experience increased pain and LLE symptoms. The profiles indicate an MMRB was being recommended until at least late May 2005 and treatment notes indicated an MEB was initiated in June 2005. It appeared to the Board that the increased symptoms reported as of 1 March were disadvantageous to the CI in his quest to remain in the military. This perspective in combination with the noted similar exam results at the PT MEB ROM exam as at the after separation C&P, explainable by pain, led the Board to resolve reasonable doubt in favor of the CI, and conclude that the evidence in record supports that the CI was having good days and bad days, with exams alternatingly meeting 20% and 40% rating criteria. Thus, with consideration of VASRD 4.7 (higher of two evaluations), Member consensus was that the CI’s disability picture was more consistent with a 40% rating at the time of separation, coded with the VA coding choice of 5241-5243.

The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy. As previously noted, the CI appealed the initial VARD and the VA provided a 10% rating for LLE radiculopathy based on the after separation C&P exam, which noted decreased LLE vibration sense, but normal perception of light touch and sharp stimuli. 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 CI reported LLE pain and at the MEB exam decreased sensation of the lateral leg and foot was noted. It was unclear from the wording of the exam whether the MEB examiner meant to imply there was decreased sensation of both LEs or just the left. However, there was no evidence in the STR of RLE pain beyond the hip or any documented sensory deficit of the RLE normal sensation of both LE was noted at the initial C&P exam, the most proximate exam to the DOS. There was minimal LLE sensory disturbance of decreased vibration sense at the second C&P exam. There was no indication in the STR that electrodiagnostic studies were performed to evaluate the radiculopathy and the USAPDA review in 2007 noted there was no EMG/NCV studies submitted at the later date as well. The pain component of a radiculopathy is subsumed under the general spine rating, as is an abnormal gait, as specified in §4.71a and there is no evidence of a permanent sensory or motor deficit in this case that caused significant functional impairment. Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.


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 back condition, the Board unanimously recommends a disability rating of 40%, coded 5241-5243 IAW VASRD §4.71a. In the matter of the contended LLE radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION
 VASRD CODE RATING
Chronic Low Back Pain Condition 5241-5243 40%
COMBINED
 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131021, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record









XXXXXXXXXXXXXXX
President
DoD 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
F or XXXXXXXXXXXXXXXXXXXX , AR20150015438 (PD201301913)
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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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