Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02598
Original file (PD-2013-02598.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02598
BRANCH OF SERVICE: Army  BOARD DATE: 20140822
SEPARATION DATE: 20051110


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Light Wheeled Mechanic) medically separated for a back condition. The back 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 Medical Evaluation Board (MEB). The back condition, characterized as “spondylolysis and spondylolisthesis,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB adjudicated “back pain with spondylolysis and spondylolisthesis” as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD). The CI initially appealed to the Formal PEB; however, a second PEB, 3 months later adjudicated “chronic low back pain (LBP)” with a change in VA code, but kept the rating at 20%. The CI concurred and was medically separated.


CI CONTENTION: The CI states: “It was a lot of painful sicknesses developed after Army. Can you calculate percentage of everyday pain? Please see personal letter to PDBR representative attached. PDBR can make a fair decision and I can go see a doctor to fix after Army issues. At least everyday pain can be lowered.”

The applicant’s complete submission, with attachments, is at Exhibit A.


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; along with the contended neuropathy of the left and right lower extremities. 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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize 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. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers 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. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.



 RATING COMPARISON :

Service IPEB – Dated 20050826
 VA - (4 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam


Chronic Low Back Pain with Nerve Root Impingement

 5241 20% S/P Lumbar Arthrodesis w/Spondylolysis and Spondylolisthesis… 5239 20% 20050715
Neuropathy of the LLE…. 8599-8520 40% 20050715
Neuropathy of the RLE….. 8520 10% 20050715
Other x 0 (Not in Scope)
 Other x 1 20050715
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 60310 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. The CI developed LBP in approximately 1999 which became progressively severe and associated with right lower extremity pain and subjective weakness. Magnetic resonance imaging (MRI) in November 2003 showed spondylolisthesis (slippage) of L5 on S1, and disc bulge with bilateral severe neuroforaminal narrowing at the same level. The CI ultimately underwent lumbar spinal fusion in August 2004. Right lower extremity symptoms improved, but intermittent LBP persisted. The CI additionally developed hypesthesia (numbness) in the left groin area, left buttock and left leg.

At the MEB separation exam on 18 January 2005 (5 months after surgery and 10 months prior to separation), the CI reported that “sometimes I can’t feel my legs.” The commander’s statement on 28 January 2005 indicated that the lower back condition interfered with performance of duties. In his letter to the MEB dated 23 March 2005, the CI complained of “pain, numbness of my body parts.” Muscle weakness was not mentioned.

The narrative summary (NARSUM) on 25 March 2005 (7 months prior to separation) noted a chief complaint of “back pain with neurologic deficits.” The back pain was described as intermittent and could be produced or aggravated by bending, twisting and lifting. He also complained of hypesthesia in the left buttocks, plantar surface of both feet and the genitals; and muscular fatigue in the legs after performing bending, stooping, lifting and carrying activities. Range-of-motion (ROM) measurements showed flexion of 55 degrees (normal to 90 degrees), extension 30 degrees (normal 30 degrees), right and left lateral flexion 30 degrees (normal 30 degrees) and right and left rotation 30 degrees (normal 30 degrees). There was no change in any measurement after three repetitions. Combined ROM was 205 degrees. Mild discomfort during ROM testing was observed. Also noted was “decreased sensation over T12-L1 dermatomal areas to include genitalia.” This examiner also reported the absence of any lower extremity muscle weakness.

At a clinic visit on 11 May 2005 (6 months prior to separation), the CI complained of numbness post-operatively that was not improving. At that time it was stated there was “no weakness anywhere.” A follow-up visit a week later the CI reported LBP radiating to the left lower extremity. He denied appreciable weakness in the left lower extremity. Examination was remarkable for lumbar spine tenderness, “nearly full ROM in all cardinal planes,” and “subtle…weakness of the LLE (left lower extremity) thigh and leg muscles.” An MRI on 27 May 2005 showed stable to improved alignment of the previously noted listhesis of L5 on S1. A fluid collection probably representing a cyst was present which could impose a mass effect on the left L5 nerve root. Findings of possible epidural fibrosis (scarring) was noted below the level of the L5-S1 disk area. The areas between L1-L5 were otherwise normal. At a final neurosurgical follow-up on 29 June 2005 (4 months prior to separation), the CI reported left leg pain and numbness. The assessment was “failed lumbar surgery with post-operative residual complaints.” Further surgery was not considered to be warranted.

At the VA Compensation and Pension (C&P) exam performed 4 months prior to separation, the CI reported that he performed no exercise on a regular basis. He complained of a constant pain in the lumbar spine that radiated into both legs to the toes, worse on the left than the right. The radiating pain was present 15% of the time. He took pain medication 2-4 times per week. He also noted numbness and tingling in the left leg, foot, buttock and genitals that occurred whenever he was active, or about 15% of the time; but penile numbness was constant. His symptoms were aggravated by sitting, twisting, bending or lifting greater than 10 pounds. Physical examination noted a normal gait, posture and spinal contour. Muscle strength was diminished in flexion and extension of the left hip (3/5 strength) and in flexion and extension of the knee (4/5 strength). All other muscle strength was normal, including “strong foot dorsiflexion.” There was sensation loss in the left lower back, left buttock, left side of the genitalia and left foot; and of the right foot. Left ankle and knee deep tendon reflexes were absent.

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating under the 5241 code (spinal fusion), while the VA assigned the same rating under the 5239 code (spondylolisthesis or segmental instability); however, the different coding choices did not bear on rating. The Board agreed that the NARSUM examination reported lumbar flexion that justified a 20% rating (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees). Under the general spine formula, criteria for the next higher 40% rating were not present. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.

The Board finally deliberated if additional disability was justified for radiculopathy in this case. The VA assigned a 40% rating for left lower extremity radiculopathy on the basis of loss of muscle strength and loss of sensation. A 10% rating was also assigned by the VA for right lower extremity neuropathy, which was considered mild. The Board notes that the presence of functional impairment with a direct impact on fitness is the crucial factor in the its decision to recommend any condition for rating as additionally unfitting. Undeniably the CI suffered additional lower extremity pain from the nerve involvement, but this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” The lower extremity pain components in this case have no functional implications. Likewise, the sensory impairment in evidence did not bear on fitness and therefore the critical decision is whether or not there was a significant motor weakness which would impact MOS-specific activities. The finding of left lower extremity muscle weakness by the C&P examiner was deliberated; however Board members considered that muscle weakness was not a complaint at the separation exam or in his letter to the MEB and no other examiner documented such weakness. Furthermore, the most significant weakness reported by the VA examiner (3/5 hip flexor and extensor) was not anatomically consistent with MRI findings; was inconsistent with the presence of the normal gait observed at that exam and was not concordant with some normal muscle strength findings in the foot. There was no motor impairment that could be linked to any functional deficit or limitation of specific physical requirements. The radiculopathy condition was not profiled, was not identified as an impairment in the commander’s statement and was not judged to fail retention standards. The Board concluded therefore that this condition could not be recommended for additional disability 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 adjudication for the chronic LBP 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 chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended 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 20131127, 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 , AR20150006300 (PD201302598)

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

Similar Decisions

  • AF | PDBR | CY2013 | PD-2013-01718

    Original file (PD-2013-01718.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. Post-Separation) ConditionCodeRatingConditionCodeRatingExam Low Back Pain Following Lumbar Fusion524110%Status Post Lumbar Spine Fusion, with Retained Hardware at L4-5 and L5-S1, with Bone Grafting from Left iliac Crest and Left Sciatica (also Claimed as Numbness in...

  • AF | PDBR | CY2012 | PD2012 01838

    Original file (PD2012 01838.rtf) Auto-classification: Denied

    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 CI had additional spine surgery in 2006 and subsequent left lower extremity peripheral nerve rating in 2008 and additional spine surgery in 2009. I have carefully reviewed the evidence of record and the recommendation of the Board.

  • AF | PDBR | CY2013 | PD-2013-02161

    Original file (PD-2013-02161.rtf) Auto-classification: Denied

    Chronic Low Back Pain Condition .The CI experienced chronic low back pain that radiated into the right leg. The VA C&P examination noted a somewhat weakened hamstring muscle but lower extremity strength was otherwise normal and gait was normal.The Board also noted that the hamstring muscle is innervated by multiple spinal nerve roots L5, S1, S2 and S3 so significant weakness from a single nerve root is not expected. I have carefully reviewed the evidence of record and the recommendation of...

  • AF | PDBR | CY2012 | PD2012 01933

    Original file (PD2012 01933.rtf) Auto-classification: Denied

    No other conditions were submitted by the MEB.The PEB adjudicated lumbar degenerative disc disease (DDD) as unfitting and rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The Board must recommend a disability rating in accordance with VA rating guidelines in effect on the date of the CI’s separation and the Board did so. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB...

  • AF | PDBR | CY2012 | PD2012 01615

    Original file (PD2012 01615.rtf) Auto-classification: Approved

    Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.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 LBP condition coded as 5299-5295. Physical Disability Board of Review 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...

  • AF | PDBR | CY2012 | PD2012-00744

    Original file (PD2012-00744.pdf) Auto-classification: Denied

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW CASE NUMBER: PD1200744 BOARD DATE: 20130314 NAME: X BRANCH OF SERVICE: MARINE CORPS SEPARATION DATE: 20011115 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a U.S. Marine Corps active duty CPL/E-4(6531/Aviation Ordanceman) medically separated for chronic low back pain (LBP). RATING COMPARISON: PEB – Dated 20010921 Condition Chronic Low Back Pain Left Lateral Leg...

  • AF | PDBR | CY2013 | PD-2013-02022

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

    The Informal PEB adjudicated LLE radiculopathy and low back pain (LBP) as unfitting rated at 20% and 10% respectively. 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...

  • AF | PDBR | CY2011 | PD2011-00410

    Original file (PD2011-00410.docx) Auto-classification: Approved

    The MEB examiner noted that the CI had constant tingling to the lateral aspect of the right lower extremity; weakness and fatigue; a right foot drop secondary to peroneal nerve injury; an AFO was required to hold the foot up to allow for walking along with a cane to provide balance; the right leg was 1.5 cm shorter and a right heel lift was required to assist with balance; there was right calf atrophy; and an inability to stand on toes due to right ankle weakness. The DD Form 2808 noted...

  • AF | PDBR | CY2013 | PD-2013-02682

    Original file (PD-2013-02682.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVASRD standards to the unfitting medical condition at the time of separation. Chronic Back Pain . The diagnoses of lumbar radiculitis involving the right L4-L5 nerve roots, spondylolisthesis (degenerative versus congenital), and lumbar spinal stenosis, severe at L4-L5-S1 on the right, were recorded.

  • AF | PDBR | CY2011 | PD2011-00439

    Original file (PD2011-00439.docx) Auto-classification: Approved

    ROM was noted to be normal with pain noted at full flexion. Right Shoulder Condition . In the matter of the chronic right shoulder pain condition, the Board unanimously recommends a permanent service disability rating of 10%, coded 5099-5003 IAW the 2002 VASRD §4.71a.