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AF | PDBR | CY2013 | PD-2013-02450
Original file (PD-2013-02450.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02450
BRANCH OF SERVICE: Army  BOARD DATE: 20141230
SEPARATION DATE: 20050803


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve Active Guard Reserve (AGR) SFC/E-7 (89B/Ammunition Specialist) 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 LBP condition, characterized as “S1 radiculopathy with persistent abnormality” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic radiating low back pain” as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “I have two disk w/ herniations L5-S1 which was operated on and L5-L4 which was not operated on. I also had loss of hearing & deviated septum as well as arthritis in my neck hands back & ankles.”


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 Aforward flexion airs, 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 :

Service IPEB – Dated 20050512
 VA - (~ 41 Mos. Pre/Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Radiating Low Back Pain 5243 10% Intervertebral Disc Syndrome With Degenerative Arthritis, Retrolisthesis, Spondylosis And
Osteopenia		 5243 10% 20090121
Radiculopathy Right Lower Extremity Status Post Lumbar Laminectomy 8520 10% 20090121
Other x 0 (Not in Scope)
 Other x 2
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 20090327 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Radiating Low Back Pain. The narrative summary (NARSUM) notes the CI had a long history of LBP which was exacerbated by training in March 2002. Magnetic resonance imaging (MRI) in March 2002 revealed a large disc in the lower spine area with impingement on a spinal nerve to the right leg. At this time the CI had symptoms of painful motion of the spine, decreased sensation in the right leg and slight weakness of the right foot. Range-of-motion (ROM) of the spine was forward flexion of 80 degrees with pain (Normal: flexion 90 degrees). Neurosurgical removal of the disc with release of the impinged nerve, without spinal fusion, was performed on 16 October 2002. Post-operatively strength in the foot returned to normal but numbness in the foot and the radiating pain continued. A follow-up MRI on 29 June 2004, revealed a tissue mass in the area of the prior surgery consistent with either scar tissue or a recurrent disk. Nerve conduction studies performed on 23 November 2004, revealed a mild to moderate spinal nerve neuropathy. On a neurosurgical evaluation on 23 November 2004, motor strength in the lower extremities was normal. At the MEB/NARSUM evaluation on 30 March 2005, 5 months prior to separation, the CI reported continued back pain and numbness in the right foot, but no leg/foot weakness. The MEB physical exam noted decreased sensation in the right lower leg and foot but no motor weakness. The NARSUM examiner reported that the CI “could not flex his trunk greater than 30 degrees without pain,” but did not define the active forward flexion that was achieved. At the VA Compensation and Pension (C&P) exam performed 41 months after separation, ROM of the spine was forward flexion of 50 degrees with pain. A normal motor examination of the extremities with continued numbness in the right foot was recorded.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below.

Thoracolumbar ROM
(Degrees)		 Neuro ~ 34 Mo. Pre-Sep
(200 21010 -Pre surgery)
MEB ~ 4 Mo. Pre-Sep
(200 50330 )
 VA C&P ~ 41 Mo. Post-Sep
(200 90121 )
Flexion (90 Normal) 80 Cannot flex trunk greater than 30 degrees without pain “ 50
Extension (30) 30 20
Combined (240) ## --
Comment Decreased motor rt foot Full strength lower extremity Decreased sensation rt foot; motor wnl

The Board directed attention to its rating recommendation based on the above evidence. Both the PEB and the VA rated the back condition at 10% under code 5243 (disc syndrome) IAW §4.71a: the PEB cited a spinal forward flexion of 75 degrees from the NARSUM exam and the VA cited a spinal forward flexion of 50 degrees and a combined ROM of 190 degrees from the remote C&P exam. Under this code, a rating of 10% requires forward flexion of the lumbar spine greater than 60 degrees, but not greater than 85 degrees. The next higher rating, 20 %, requires flexion of the lumbar spine greater than 30 degrees, but not greater than 60 degrees. The next higher rating, 40%, requires flexion of the lumbar spine of 30 degrees or less. The Board considered a rating under ROM criteria, IAW §4.71a.

The Board noted the findings on the NARSUM exam of pain beginning at a forward flexion of 30 degrees, but no definition of the active forward flexion that could be achieved by the CI. The Board agreed that this finding did not support a rating 40%. The Board noted the ROM of forward flexion of 75 degrees which the PEB quoted from the NARSUM exam and used in its adjudication. The Board, after a thorough search of the record in evidence and appropriate inquiries, was unable to document any proximate ROM evaluations, addenda or requests for clarification of NARSUM findings by the PEB, which would confirm this ROM report. The Board noted the ROM finding of forward flexion of 50 degree on the remote VA C&P evaluation. This would support a rating of 20% under code 5243. The Board consensus was that the CI had a decreased spinal ROM from pain at the time of separation and that the record in evidence reasonably supported a fair and equitable rating of 20%, code 5243, IAW §4.71a.

The Board considered a rating IAW §4.123 (neuritis, peripheral nerve). The Board agreed there was a peripheral neuropathy in this case but it was not ratable as a nerve impairment since no motor weakness was present, sensory symptoms and decreased reflexes on exams had no functional implication and radiation of pain was subsumed under the back rating IAW §4.71a. The Board considered a rating under code 5243, (incapacitating episodes/intervertebral disc syndrome). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician. The record documents no incapacitation under this definition in the 12-month period prior to the MEB examination. The Board agreed that no rating could be recommended under this code. The Board found no other appropriate codes for consideration. 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 back 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. 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 pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243 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:

UNFITTING CONDITION VASRD CODE RATING
Chronic Radiating Low Back Pain 5243 20%
COMBINED 20%







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






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, AR20150007626 (PD201302450)


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 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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