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AF | PDBR | CY2013 | PD-2013-02022

Original file (PD-2013-02022.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX CASE: PD-2013-02022
BRANCH OF SERVICE: Army BOARD DATE: 20141112

DATE OF PLACEMENT ON TDRL: 20021005
Date of Permanent SEPARATION: 20051004

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantryman) medically separated for back pain and left lower extremity (LLE) radiculopathy. These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P4/L3 profile and referred for a Medical Evaluation Board (MEB). The back and lower leg conditions, characterized as “persistent left L5-S1 radiculopathy,” “degenerative L5-S1 spondylolisthesis,” “lumbar spine degenerative disc disease,” and “chronic mechanical and myofascial low back pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (major depressive disorder) for PEB adjudication. The Informal PEB adjudicated LLE radiculopathy and low back pain (LBP) as unfitting rated at 20% and 10% respectively. The remaining condition (major depressive disorder) w as determined to be not unfitting . The CI made no appeals, and was placed on the Temporary Disability Retired List (TDRL). Approximately 3 years subsequent to the original PEB, his conditions was reevaluated by a new Informal PEB which reduced his combined rating from 30% to 20%. The PEB attempted to send the results of the board to the CI, but they were returned undelivered. The Army separated the CI with severance pay IAW AR 635-40, para 4-20e, indicating that “the Soldier is considered to have waived his right of election [of a formal board].”

CI CONTENTION: “Worsening and continued degeneration of conditions”

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 ratings for the unfitting back and lower extremity conditions are addressed below; and, no additional conditions 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 Board for Correction of Military Records.

RATING COMPARISON :

Final Service PEB - 20050915	VA (~37 Mo. Prior to Adjudication Date) - Effective 20021005*
On TDRL - 20021005	Code	Rating	Condition	Code	Rating	Exam
Condition		TDRL	Sep.
Chronic Radiating Pain and Weakness of Left Lower Extremity	5243-8520	20%	10%	Left Lower Extremity Neuropathy	5293-8520	20%	20020906
Chronic Low Back Pain	5243	10%	10%	Degenerative Disc Disease Lumbar Spine	5293-5292	10%	20020906
Other x 1 (Not in Scope)	Other x 5 (Not in Scope)
Combined: 30% → 20%	Combined: 50%

Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of rating determinations for the disability existing at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The 2003 VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of TDRL entry, were updated on 23 September 2002 for code 5293 (incapacitating episodes) and then changed to the current §4.71a rating standards on 26 September 2003. The older VASRD standards for rating based on range-of-motion (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 VASRD normal ROM values were not in effect prior to 26 September 2003, and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately.

Low Back Pain. Absent direct trauma, the CI first sought treatment for LBP in April 2000. Radiologic tests revealed degenerative disc disease with an L5-S1 disc bulge. Despite medications, physical therapy and spinal injections, his LBP continued with a new onset of a left foot drop on ambulation. Electro-diagnostic studies revealed a severe left L5 radiculopathy. On 31 January 2002, he underwent a partial L5-S1 laminectomy and discectomy. Post-operatively, his left leg strength and pain was “much improved.” At the MEB narrative summary examination performed on 7 May 2002; (5 months prior to TDRL entry), the CI reported severe LBP with “occasional numbness and tingling” in his left leg. Aggravated by prolonged standing, sitting, bending and climbing stairs; relief was obtained with stretching and heat. His functional status included the ability to fire a weapon and wear Kevlar. The physical examination (PE) revealed an abnormal gait and tenderness to the lumbar spine. There was painful and limited ROM. The commander’s letter reflected that the CI was not working in his primary MOS, but did not include reasoning for such employment. His permanent profile listed back pain and associated peripheral involvement. There were no periods of VASRD defined incapacitating episodes. At the VA Compensation and Pension (C&P) evaluation performed on 6 September 2002; a month pre-TDRL entry, the CI reported daily LBP. He reported, “The pain is about the same as it was before surgery. “He cannot bend and lift even something as light as a laundry basket because it will precipitate LBP’.” The PE was brief and revealed minimally limited ROM. At the TDRL re-evaluation on 24 March 2005 (6 months prior to permanent separation), the CI reported end of day LBP with radicular symptoms into his left leg made worse with prolonged standing, bending and lifting that improved with lying in a supine position. “In general he does not take pain medication.” His PE revealed a gait favoring the left side and minimally decreased, but painful ROM. A foot drop was not present.

The goniometric 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 (Degrees)	PT ~12 Mo. p re- TDRL entry (20011002)	VA C&P ~1 Mo. Pre-TDRL entry (20020906)	MEB ~ 6 Mo. Pre- TDRL exit (20050324)
Flexion (90 Normal)	50	86	85
Extension (30)	20	18	30
R Lat Flexion (30)	15	30	30
L Lat Flexion (30)	25	30	3 0
R Rotation (30)	-	30	30
L Rotation (30)	-	30	30
Combined (240)	-	224	235
Comment	Gait : ‘abnormal’ (+) tenderness;	G ait : ‘favors left side’ (+) painful motion;	(+) slightly antalgic
§4.71a Rating	10%-20%	10%- 20 %	10%-20%

The Board directed attention to its rating recommendation based on the above evidence. The PEB coded the back condition under the current VASRD §4.71a rating code of 5243 (intervertebral disc syndrome) at 10% which was not in effect at the time of the CI’s TDRL entry. The VA dual coded the back condition under the prior VASRD spine rules in effect at the time of TDRL entry with a 10% (slight) rating under 5293-5292 (intervertebral disc syndrome-lumbar limited motion). Board members first acknowledged that the available rating levels under the prior spinal rules were limited to 0%, 10%, 20%, or 40% (severe) impairment. Upfront, members agreed that near the time of TDRL entry the PEB’s 20% rating was the maximum allowable given the absence of “severe” symptoms. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that painful motion was sufficiently evidenced to support 10% under VASRD §4.59 and therefore, do not recommend a change in the PEB’s adjudication for the LBP condition upon entry into TDRL. With regards to the permanent rating recommendation, all Board members agreed that the under the current VASRD spine guidelines the combined ROM of 235 degrees meets the maximum allowable in support of a 10% impairment rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the LBP condition upon permanent retirement.

Left Leg Radiculopathy. In conjunction with the CI’s low back condition he developed an insidious onset of left lower extremity pain, weakness and eventually, a left foot drop. After the above described surgery, his foot drop symptoms and leg strength slightly improved. At the MEB exam, the CI reported “occasional numbness and tingling persist in the left leg.” His PE noted decreased sensation over the left lateral leg and top of left foot (consistent with L5 pathology). Atrophy, measured as two centimeter loss was evident in the left lower leg. Left foot strength remained decreased at either 3/5 or 4/5. At the VA C&P exam, the CI reported that his foot drop and muscle strength had improved, but still “tends to trip on the left foot if [he] is not paying attention.” The VA PE revealed a left-sided favored gait. There was significant weakness in the LLE as evidenced by difficulty with left heel/toe walk, tandem walk and squatting. Left-sided motor strength was 4/5 on dorsiflexion and 3/5 on plantar flexion. There was abnormal sensation throughout the left-sided L5 anatomic sensory distribution.

The TDRL re-evaluation noted “…slight improvement with sensation” as well as “[The CI] feels that the majority of improvement in strength and sensation (in regards to his left leg) occurred shortly after the surgery.” His PE revealed slightly diminished comparison strength and sensation about the left leg and foot. There was also minimal comparison atrophy about the left calf.

The Board directs attention to its rating recommendation based on the above evidence. The PEB dual coded the left leg condition under VASRD General Rating Formula for the Spine and Diseases of the Peripheral Nerves; under 5243 (intervertebral disc syndrome) and 8520 (sciatic nerve; incomplete paralysis) at 20% going in to TDRL and 10% on permanent retirement. The VA also dual coded the left leg condition utilizing codes from both prior and current VASRD spine rules with a 20% rating under 5293-8520 (intervertebral disc syndrome-sciatic nerve). Board members considered and agreed that in light of the presenting symptoms, especially the unilateral foot drop, coupled with corresponding X-ray images, the peripheral nerve code is appropriate in this case. The incomplete sciatic nerve code rates symptoms at 10% (mild), 20% (moderate), 40% (moderately severe to severe), with marked muscular atrophy rated at 60%. Near the time of TDRL entry, the CI still persisted with left leg weakness (albeit somewhat improved) to the point of “tends to trip on the left foot.” Board members deliberated and agreed that such functional impediments of “tripping over a foot” is supported at a moderate level of impairment (PEBs current 20%). Members furthered agreed that absent any actual “give-way” or “unstableness” to the leg does not reach the threshold of moderately severe impairment at 40%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the left leg radiculopathy condition upon entry into TDRL. With regards to the permanent rating recommendation, Board members considered and agreed that during TDRL, the CI’s symptoms improved with regards to strength, sensation, and less atrophy in the lower extremity; thereby indicating less impairment then upon TDRL entry. The Board was left to determine if the degree of symptom improvement was to the level of mild at 10% or was it to remain at the 20% (moderate) level. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the new physical findings were improved to the level of “mild” impairment and therefore do not recommend a change in the PEB’s adjudication for the left leg radiculopathy condition upon permanent retirement.

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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s adjudication for the period of TDRL and at permanent retirement. In the matter of the left leg radiculopathy condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB’s adjudication for the period of TDRL and at permanent retirement. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131101, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXXXX, AR20150006949 (PD201302022)

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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

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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AF | PDBR | CY2013 | PD-2013-02022

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