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AF | PDBR | CY2013 | PD-2013-02203
Original file (PD-2013-02203.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02203
BRANCH OF SERVICE: Army  BOARD DATE: 20140626
SEPARATION DATE: 20080417


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Police) medically separated for a lumbar spine condition. 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). Chronic low back pain (LBP), characterized as not meeting retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The PEB originally adjudicated lumbar degenerative disc disease (DDD) without motor neurologic deficit as unfitting, rated 10% citing criteria of the VA Schedule for Rating Disabilities (VASRD). The PEB then reconsidered its own findings reaffirming the lumbar spine condition as unfit, but increased the rating to 20%. The CI made no appeals and was medically separated.


CI CONTENTION: “Rated at 20% and separated for Chronic Low Back Pain. Other contributing factors were not taken into consideration. Factors are: Sacroilitis, Herniated Inter-vertebral Disc/Herniated Disc at L4-L5, Inter-vertebral Disc Degeneration, Sciatica. Also feel that I should have received a rating for PTSD rather than Adjustment Disorder with Anxiety.”


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 rating for the unfitting lumbar spine condition is addressed below. The contended MH condition was not addressed by the MEB or the PEB and therefore, is not within the Board’s purview. No additional conditions are within the DoDI 6040.44 defined purview of the Board. Any condition 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.

The Board also acknowledges the receipt of additional evidence mailed in by the CI, which was reviewed by the Board and considered in its recommendations.



 RATING COMPARISON :

Service IPEB – Dated 20080325 (admin corrected)
 VA* - (~12 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar DDD without Motor Neurologic Deficit 5299-5242 20% DDD, Lumbar Spine… 5242 20% 20090423
Radiculopathy 8620 NSC 20090423
Other x 0 (Not in Scope)
 Other x 6 20090505
Combined: 20%
 Combined: 50%
* Derived from VA Rating Decision (VARD) dated 20091020 (most proximate to date of separation (DOS))


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests a service rating should have been conferred for another condition documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However, the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Lumbar Spine Condition. The narrative summary notes the CI experienced sudden LBP when twisting and lifting a duffle bag in July 2005 while deployed. He was treated with medications and repeated local intramuscular injections until his return to CONUS. Conservative treatment including physical therapy was not helpful and he underwent three epidural steroid injections without sustained relief. Repeated lumbar spine magnetic resonance imaging on 24 April 2006, 2 November 2006 and 28 September 2007 showed lumbar DDD with a broad based disc bulge at L4-5 level that caused mild spinal canal stenosis and impingement of both exiting L-4 nerve roots, with a transitional vertebra (common variant) at the L5 level. Lumbar spine X-rays performed on 10 February 2006 noted some degenerative joint disease (facet joint arthritis L4-5) and spina bifida occulta at S1 (congenital disorder that is asymptomatic in the majority of cases) and normal S1 joints. Electromyography/nerve conduction studies (EMG/NCS) of the right lower extremity (LE) in August 2006 were normal. Additional testing indicated the CI was a candidate for spinal fusion surgery, which he declined. On the DD Form 2807, Report of Medical History, the CI reported back pain with numbness and tingling and right LE pain. At the MEB exam on 10 December 2007, 4 months prior to separation, the CI reported chronic LBP and LE pain. The MEB physical exam noted three serial thoracolumbar (TL) spine goniometric range-of-motion (ROM) measurements of flexion 50 degrees, 45 and 50 (normal 90) with limitation of motion due to pain noted, with localized tenderness and mild muscle spasm and also noted passive ROM values of 55 degrees, 50, 60 with a TL combined ROM of 182. LE strength and reflexes were normal with negative straight leg raise (SLR) testing bilaterally. A pain rating of mild and constant was noted by the MEB examiner.

At the VA Compensation and Pension (C&P) spine exam 23 April 2009, 12 months after separation, the CI reported back pain and sciatica down both legs. The CI reported pain between 7-10/10 with frequent attacks that involved most days in the last year, during which he needed to get off his feet, take a warm bath, use a heating pad, etc. The VA examination showed the CI had difficulty with heel and toe walking. SLR testing was positive bilaterally, left worse than right. There was tenderness of the lower lumbar spine. Thoracolumbar ROM was flexion of 60 degrees with combined total limitation ROM of 190. The examiner noted that three repetitions did not further reduce the lumbar ROM. Radiographs of the lumbar spine showed the transitional vertebra with normal spine alignment and normal S1 joints.
At the VA C&P peripheral nerves examination on 25 April 2009 the CI reported back pain that radiated down both legs, at times to the heels. He denied weakness or bladder/bowel problems. EMG/NCS studies of the right LE in August 2006 were normal. Gabapentin (nerve medication) “seemed to help.” On the VA examination there was normal gait, balance, LE muscle strength, reflexes with no muscle atrophy. There was “patchy, decreased sensation” on the outside of the left foot; sensation was otherwise normal. Findings often present with spina bifida occulta were noted on the spine (vertical oval reddened area over the back, without elevation, or a tuft of hair). There was diffuse tenderness over the mid-back, SLR increased back pain, but did not elicit LE pain or paresthesias. The examiner indicated the CI had the occasional pain radiating down the legs, which represented referred pain from the back, but that there was no definite evidence of a lumbar radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the lumbar spine DDD 20%, coded as 5299-5242 (analogous to degenerative arthritis of the spine) and cited forward flexion of 60 degrees. The VA rated the lumbar spine DDD at 20%, coded 5242 and denied service-connection for radiculopathy. The Board deliberated the rating of the lumbar DDD condition. The Board noted that he PEB cited passive ROM values at the MEB examination; however, the active ROM values at both the MEB and the VA C&P examination also placed the CI in the 20% rating IAW the VASRD General Rating Formula for Diseases and Injuries of the Spine, specified as “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.” The Board reviewed to see if the higher evaluation of 40% was achieved, specified as “forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire TL spine and found that it was not.” The Board also reviewed to see if a higher evaluation could be achieved by rating intervertebral disc syndrome based on incapacitating episodes. At the VA C&P examination the CI reported needing to “get off his feet” frequently due to back pain but the VASRD spine rules specify incapacitating episodes as “. . . requires bed rest prescribed by a physician and requires treatment by a physician” and there was no corroboration of incapacitating episodes in record. All available LBP treatment notes in the STR indicated the CI was returned to duty, with or without limitations and there were no post-separation LBP treatment notes in the year between separation and the noted C&P examinations in record. The Board agreed that the evidence did not support a higher rating than 20%, which would require “incapacitating episodes . . . of at least 4 weeks . . . in the last 12 months.” 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 adjudication for the lumbar DDD condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. Symptoms of radiating pain to the right LE was documented to be present “occasionally” and less frequently to the left LE as well (usually due to muscle spasms in the low back). The majority of examinations in the service treatment record noted normal strength, sensation, reflexes and gait and right lower extremity EMG was normal. The MEB examination noted normal strength and reflexes and did not address sensation. The assessment at the VA C&P peripheral nerve examination was that there was no definite evidence of a lumbar radiculopathy; that the leg pain was referred pain from the CI’s back. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. While the CI appears to have suffered radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” Therefore the critical decision is whether or not there was a significant motor or sensory weakness which would impact military occupation specific activities. The radiculopathy or leg pain was not profiled or implicated in the commander’s statement and there is no evidence in this case that motor or sensory deficits existed to a degree that could be described as functionally impairing. Based on the preponderance of evidence the Board concluded that this condition could not be recommended for an additional disability rating.


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 DDD condition and IAW VASRD §4.71a, 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, 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 20131102, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                          
XXXXXXXXXXXXXXXXX
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 , AR20150002589 (PD201302203)

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

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