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AF | PDBR | CY2013 | PD-2013-01990
Original file (PD-2013-01990.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01990
BRANCH OF SERVICE: Army  BOARD DATE: 20150211
SEPARATION DATE: 20050615


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-3 (Military Policeman) medically separated for chronic low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The “chronic low back pain, status post (s/p) surgery for herniated disc L4-L5” and “chronic low back pain, s/p surgery for herniated disc for herniated disc L5, S1” conditions were 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 10% with likely application of AR 635-40. The CI appealed to the Formal PEB, but later withdrew his request and was medically separated.


CI CONTENTION: “Review board did not rate insomnia or aggravation of previous injury as well as chronic pain since discharge, advised as the med board would lower to 0% if challenged.”


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 Veterans Affairs Schedule for Rating Disabilities (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 20050414
 VA* - (~5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5241 10% Residuals Of Herniated L5-S1 Disk 5241 20% 20051128
Other x0
 Other x2
RATING: 10%
 RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 20 060207 (most proximate to date of separation ( DOS ) )



ANALYSIS SUMMARY:

Chronic Low Back Pain: The CI suffered a low back injury in September 2000 while lifting a heavy object at his civilian job. He had low back and leg pain and underwent a micro-laminotomy in October 2000. His leg pain resolved and he had some residual LBP. He was activated in January 2004 and shortly thereafter experienced an exacerbation of his LBP. He was treated by physical therapy (PT) and a magnetic resonance imaging study revealed degenerative changes in the L5-S1 disc space and a moderate broad-based disc bulge at L4-5. Continued treatment by PT did not decrease his pain and he underwent a lumbar discectomy and fusion at L5-S1 in August 2004. A follow-up note in October 2004 documented that “…his preoperative symptoms have significantly decreased.” When his LBP continued he was referred into the Disability Evaluation System. The narrative summary (NARSUM) prepared 3 months prior to separation noted that “upon reactivation in March 2004, he had his right leg go numb again while he was doing the alternate event APFT walk.” The pertinent physical exam findings are summarized in the chart below. At the VA Compensation and Pension exam performed 5 months after separation, the CI reported sharp LBP on uneven ground, with sudden movements, and with heavy lifting. Otherwise he had constant mild discomfort which was decreased from his level of pain prior to the fusion. His employment was sedentary and he had not missed any work days due to LBP. His LBP did limit his ability to left heavy weights or play with his young child. Plain film X-ray revealed anterior spinal fusion at L5-S1 with good alignment and minimal anterior wedging at L1 and T-12.

The two goniometric range-of-motion 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) MEB ~3 Mo. Pre-Sep VA C&P ~5 Mo. Post-Sep
Flexion (90 Normal) 50 60
Combined (240) 185 170
Comment Pos. painful motion; Normal reflexes; Decreased sensation right leg Normal gait; Pos. painful motion; Normal sensation, reflexes & strength
§4.71a Rating 20 % (PEB 10%) 20 % (VA 20%)

The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated sciatic radiculopathy at separation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases. The pain component of a radiculopathy is subsumed under VASRD §4.71a (General Spine Rating) . The sensory component in this case has no functional implications, and no motor weakness was in evidence and cannot be linked to significant functional consequence. There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating on this basis.
The Board directed its attention to its rating recommendation based on the above evidence. The PEB adjudicated the chronic LBP condition by applying VASRD code 5241 (spinal fusion), and rated it 10% citing “…limited range of motion (50° flexion) due to pain alone” which is consistent with application of AR 635-40. The VA also applied code 5241 but rated it 20% citing “An evaluation of 20 percent is granted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees.” That language is directly from the General Rating Formula for Diseases and Injuries of the Spine which also 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.” The prior to separation NARSUM documents a forward flexion of 50 degrees which meets the 20% rating criteria for code 5241. There was no evidence of intervertebral disc syndrome or incapacitating episodes that could be considered for alternative coding/rating schemes. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% 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 AR 635-40 for rating the LBP condition was operant in this case and the condition was adjudicated independently of that instruction by this Board. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, 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, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
Chronic Low Back Pain 5241 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131022, 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
for XXXXXXXXXXXXXXX, AR20150010413 (PD201301990)


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 20% 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                       XXXXXXXXXXXXXXX
                                    Deputy Assistant Secretary of the Army
                                    (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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