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AF | PDBR | CY2013 | PD-2013-02070
Original file (PD-2013-02070.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-02070
BRANCH OF SERVICE: Army  BOARD DATE: 20140624
SEPARATION DATE: 20081227


SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty SPC/E-4 (92S/Shower, Laundry and Clothing Specialist) medically separated for degenerative arthritis of the lumbar spine and right lower extremity radiculopathy. The conditions 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 U3/L3 profile and referred for a Medical Evaluation Board (MEB). Low back pain, herniated intervertebral disc, lumbar radiculopathy and scoliosis conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions. The Informal PEB adjudicated “degenerative arthritis of the lumbar spine” and “right lower extremity radiculopathy” as unfitting, rated 10% and 10%. The remaining conditions were determined to be not unfitting and not a physical disability IAW DoDI 1332.38, E5 . The CI made no appeals and was medically separated.


CI CONTENTION: “I’ve have two steroid injections for the pain, shooting sharp pain in my spine down to my foot, and I’m still in pain.”


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 degenerative arthritis of the lumbar spine and right lower extremity radiculopathy conditions are addressed below; 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 :

Service IPEB – Dated 20081120
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Degenerative Arthritis of the Lumbar Spine 5242 10% Degenerative Arthritis, Lumbar Spine 5242 20% 20090528
Right Lower Extremity Radiculopathy 8599-8520 10% No Corresponding Rated VA Condition at DOS*
Other x 2 (Not in Scope)
 Other x 1 (Not in Scope) 20090528
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 90910 ( most proximate to date of separation [ DOS ] ).
*Added 8520 at 10% effective 20 0 81228 per VARD dated 20110708 based on STR and original VA exam as charted above.


ANALYSIS SUMMARY:

Degenerative Arthritis of the Lumbar Spine Condition. The narrative summary (NARSUM) dated 17 September 2008 noted that lower back symptoms began with pain in 2007 due to a fall while deployed. Duty activities exacerbated his symptoms, but he did not seek care. Symptoms worsened after activity in February 2008; he had onset of pain shooting down his right leg followed by treatment and a temporary duty restriction. Pain occurred on awakening, after 10 minutes. The CI reported “feeling severe pain like a ‘lock-up’ and pins and needles going down side of right leg associated with tingling of right foot and lateral right ankle.” Symptoms were unimproved despite continued conservative treatment, and profile. An X-Ray on 14 March 2008 demonstrated mild thoracolumbar scoliosis (abnormal spine contour). An Orthopedic clinic evaluation on 17 March 2008 resulted in referral to physical therapy for chronic low back pain with associated sharp pain with numbness and tingling down his right (greater than left) lateral leg. Magnetic resonance imaging on 19 March 2008 showed two level disc protrusion and facet hypertrophy with narrowing of the foramina (nerve outlet areas) to a moderate degree which impinged on the thecal sac (spinal cord surrounding) and caused compression of the left S1 nerve root. The CI was given a back brace which provided some back pain relief, but did not improve his radicular symptoms. An electrophysiological (EMG) study was performed on 10 April 2008 and showed acute lumbar radiculopathy at L5-S1, left greater than right.

The MEB physical exam, 3 months prior to separation and the two physical therapy exams with measurements proximate to separation are summarized below. Of note, the entry physical exam dated February 2005 indicated a normal spine exam. At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported continued sharp low back pain with pain and numbness of the right leg, despite medications. He wore a back brace and reported moderate interference of exercise, chores, shopping, travel and recreation. No scoliosis was noted. The exam is summarized below. The goniometric range-of-motion (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 ~ 6 Mo Pre-Sep MEB ~ 3 Mo. Pre-Sep PT ~1 Mo. Pre-Sep VA C&P ~5 Mo. Post-Sep
Flexion (90 Normal) (75) 76 90 (30) 31 40
Combined (240) 195 215 160 140
Comment : VA Notes 2, 4 for rounding and truncating applied 4-6/10 pain; sharp/numbing Limited by pain; mild scoliosis; +spasm ; normal strength and sensation; 1+ symmetric DTRs Waddell’s 2/8; no change after repetitions No pain on motion; +SLR
§4.71a Rating 10% 10 -20 % 40% 20%

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the low back condition at 10% coded 5242 (degenerative arthritis of the spine) and the VA rated the condition at 20% using the same disability code. Code 5243 was an alternative coding option, but there was less than a week of incapacitation (bed rest prescribed by a physician) for coding under the intervertebral disc syndrome formula. The Board considered the 20% versus the 10% spine rating under the General Rating Formula of the Spine. The ratings based only on ROM findings depended on which exam was adjudged to best represent the CI’s disability at the time of separation. The most proximate PT exam and the VA post-separation exam documented forward flexion that would rate 40% and 20% respectively, while the MEB exam and earlier PT exams would warrant a 10% rating. The Board also considered if the finding of muscle spasm and abnormal spinal contour noted at the MEB exam warranted a 20% rating. There was discussion regarding whether the mild scoliosis finding was related to the muscle spasm, or instead a fixed defect and if use of a back brace led to decreased thoracolumbar functioning. The entry exam and VA exams did not document any abnormal spinal contour (scoliosis), while the March 2008 orthopedic evaluation (and scoliosis X-ray evaluation) showed scoliosis without documented spasm, but during evaluation of acute symptoms. The exam closest to separation would rate 40%; however, that level of disability was not supported by the remainder of the record and therefore did not carry probative value for rating at the time of separation. Considering the totality of the evidence and mindful of the VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the lumbar spine condition.

Right Lower Extremity Radiculopathy Condition. Radiating pain since January 2008 was associated with the unfitting lumbar spine condition. In 2008 the symptoms included “severe pain like a ‘lock-up’ and pins and needles going down side of right leg associated with tingling of right foot and lateral right ankle.” Symptoms were worse on the right than the left. The CI denied weakness or bowel or bladder dysfunction. Service exams showed intermittent findings of decreased sensation in the right lower leg with no motor deficits or loss of deep tendon reflexes (DTR). Gait was normal. Orthopedic exam on 17 March 2008 documented “special tests decreased sensation on the right lower extremity” without specifying a specific nerve distribution or detailed anatomic area. The EMG dated 10 April 2008 documented radiculopathy at the L5/S1 level on both sides. The VA C&P exam dated 28 May 2009 documented a positive SLR (straight leg test - for radicular signs) and decreased bilateral knee jerk (DTR as 1+/2+ with other tested reflexes all 2+/2+). DD Form 2808 dated 13 June 2008 also documented a positive right SLR. The September 2009 NARSUM exam was focused on the spine and documented normal gait, symmetrical lower extremity reflexes and normal strength, but did not address any sensory testing.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right leg radiculopathy at 10% coded 8599-8520 (analogous to sciatic nerve, mild incomplete paralysis). The VA initial rating of 10% was coded 8520. Radiographic evidence documented L5/S1 pathology compressing the S1 nerve root that aligned with the CI’s radiculopathy symptoms. As there was no paralysis, rating under a neuralgia (which uses the 8520 rating criteria) would be ideal coding. The Board deliberated if the CI’s radiculopathy was best represented by the 10% (mild) or 20% (moderate) criteria for peripheral nerve rating with consideration of VASRD §4,123 for neuritis of the sciatic nerve. There was no motor component to the radiculopathy and pain, including radiating pain, which was considered in the general spine rating above. 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 10% adjudication for the right lower extremity radiculopathy condition, although a disability code change to 8599-8620 is more clinically accurate.


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 lumbar spine condition, the Board majority recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a. In the matter of the right lower extremity radiculopathy condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.







RECOMMENDATION: The Board majority 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
Degenerative Arthritis of the Lumbar Spine 5242 20%
Right Lower Extremity Radiculopathy 8599-8620 10%
COMBINED 30%


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





                 
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150001810 (PD201302070)


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 30% 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 30% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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