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AF | PDBR | CY2013 | PD-2013-02591
Original file (PD-2013-02591.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX              C ASE: PD-2013-02591
BRANCH OF SERVICE: ARMY           BOARD DATE: 20150429
SEPARATION DATE: 20050602


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (None, Basic Trainee) medically separated for back pain. The condition 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 L3 profile and referred for a M edical Evaluation Board (MEB). The “ herniated disc at L5S1 with radiculopathy bilateral s/p discectomy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB (IPEB) adjudicated the back pain as unfitting, rated 10%, with likely application AR 635-40. The CI made no appeals and was medically separated.


CI CONTENTION: “ Suffering from chronic back and leg pain. Condition is causing additional pain in my upper back and spine. Condition has prevented me from obtaining certain jobs, because of I was not able to meet the physical job requirements.”


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 back condition is addressed below. The contended leg pain condition, identified by the MEB as “Bilateral Radiculopathy,” is likewise addressed below.) No additional condition is 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, may remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding continued and increased severity of functional impairments associated with his service connected condition. The military Disability Evaluation System has neither the role nor the authority to compensate service members 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.


 RATING COMPARISON :

IPEB – Dated 20050425
 VA* - (~2 Mos. Pre/Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Subjective Back Pain, s/p Lumbar Discectomy, Without Neurologic Abnormality… 5243 10% Post Laminectomy Syndrome Lumbar; s/p Lumbar Lam i nectomy … 5243 10% 20050405
Surgical Scar, Mid Lumbar Spine … 7801 0% 20050405
Other x0
 Other x0
RATING: 10%
 RATING: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 50726 (most proximate to date of separation )


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veteran’s Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Back Pain Condition . The evidence reflects that the CI injured his low back along with leg pain and numbness in his feet while performing physical training during basic infantry training in September 2004. He was evaluated by primary care and sent for a scoliosis series which revealed no scoliosis. He was referred to physical therapy where the data reflects that he refused treatment. His low back pain persisted and when a magnetic resonance imaging study revealed a herniated disc at L5-S1 a micro discectomy was performed in November 2004. The data reflects that the CI went on 30 days of convalescence leave and did not undergo any post-operative physical therapy. The narrative summary (NARSUM) prepared four months prior to separation noted that upon return from convalescence leave he was evaluated for his persistent low back pain and leg pain. The CI stated that the pain was better than prior to surgery but it still would not allow him to bend, stoop, or lift. The numbness in his feet was completely gone. At the VA Compensation and Pension (C&P) exam performed two months after separation, the CI reported the pain was elicited by physical activity and relieved by rest. At the time of pain he could function without medication. He related incapacitating episode which lasted for 30 days over the past year. Along with the physical exam findings summarized below, the examiner stated, “There are no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.” Plain film x-rays were normal.

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)
 NARSUM ~4 Mo. Pre-Sep PT ~1 Mo. Pre-Sep VA C&P ~ 2 Mo. P re -Sep
Flexion (90 Normal)
 30 25 80
Combined (240)
 - 145 230
Comment
 Normal strength & sensation Pos. painful motion; “muscular end-feel” at end of ROM Normal gait; Pos. painful motion & tenderness to palpation; No spasm; Neg. SLR bilaterally; Normal strength, reflexes & sensation
§4.71a Rating
 40 % (PEB 10%) 40 % 10 %

The Board directed its attention to its rating recommendation based on the above evidence. The PEB adjudicated the Chronic Subjective Back Pain condition by applying VASRD code 5243 (intervertebral disc syndrome) and rating it 10% with likely application of AR 635-40. The VA also applied code 5243 and rated it 10% based on the ROM measurements documented in the C&P exam. The evidence supports that the CI did have an intervertebral disc syndrome prior to the micro discectomy; however, the radicular component of that syndrome resolved after surgery. Additionally, at the time of separation there were no abnormal reflexes, decreased strength, or radiation of pain; no signs or symptoms of the intervertebral disc syndrome, just low back pain. The evidence also supports that the CI refused treatment by physical therapy before and after the surgical procedure. Board members deliberated on the significant difference between the thoracolumbar ROM values obtained by the Service (less than five months after surgery) and the much improved measurements documented by the C&P exam (now over sever months after surgery). Board members agreed that the improvement was likely due to the normal healing process as time passed. The Board assigned the highest probative value to the C&P exam as it was more proximate to separation and it was the most comprehensive exam on which to base its rating recommendation. The 80 degree thoracolumbar ROM corresponds with a 10% rating under the general rating formula. A rating under code 5243 based on incapacitating episodes was also considered by the Board. The C&P exam documents a 30 day period of incapacitation, which the Board considered was more likely than not based on the 30 day convalescent period, and did not meet the VASRD definition of incapacitation (…a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). The Board considered whether additional Service rating could be recommended under a peripheral nerve code 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 Service disability in spine cases. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. There was no evidence of a significant sensory or motor deficit. Therefore, there is 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 Service disability rating on this basis. 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 Herniated Disc at L5-S1 w/ Bilateral Radiculopathy s/p Discectomy 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 Chronic Subjective Back Pain was operant in this case and the condition was adjudicated independently of that instruction by this Board. In the matter of the Herniated Disc at L5-S1 w/ Bilateral Radiculopathy s/p Discectomy condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended leg pain (Bilateral Radiculopathy) condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. 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 20131125, 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, AR20150012710 (PD201302591)


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

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