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AF | PDBR | CY2013 | PD-2013-02821
Original file (PD-2013-02821.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02821
BRANCH OF SERVICE: Army  BOARD DATE: 20150512
SEPARATION DATE: 20050919


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Combat Engineer) 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). The “chronic low back pain with L4-5-S1 herniation” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded six other conditions; “neck pain with C3-4 disc,” “Hashimoto’s hypothyroidism,” “hypogonadism,” “hypertension,” “hypercholesterolemia,” and “GERD” as meeting retention standards, for PEB adjudication. The Informal PEB (IPEB) adjudicated “chronic radiating low back pain” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI appealed to the Formal PEB (FPEB) and US Army Physical Disability Agency; both affirmed the IPEB findings and ratings, and he was medically separated.


CI CONTENTION: The CI requests to be allowed to finish his active service to retirement. His complete submission 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 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 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 Affairs, 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 :

PDA Adm Correction – Dated 20050902
 VA* - (~3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Intervertebral Disc Syndrome 5243 10% Degenerative Disc Disease Lumbar Spine, S/P Microdiskectomy 5243 20% 20051212
Other MEB/PEB Conditions x 6 (Not In Scope)
 Other x 0 (Not in Scope)
RATING: 10%
 RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 60120 (most proximate to date of separation ( DOS ) ) .
ANALYSIS SUMMARY:

Intervertebral Disc Syndrome. The CI had a long history of intermittent low back pain. The development of associated right leg pain and sensory symptoms led to microdiscectomy surgery in October 2002. He subsequently did well, but soon after his June 2004 mobilization the condition flared up, causing low back pain and radiating pain to both legs. Orthopedic evaluation on 4 November 2004 (10 months prior to separation) reported radiating pain to both legs, right greater than left. Examination noted the CI to move “around the room easily.” Gait was normal. Lumbar range of motion was “within normal limits, not reproducing pain.” Lower extremity muscle strength was normal. Based on imaging studies, the examiner determined that L4-5 and L5-S1 disc protrusions with some bilateral neuroforaminal impingement were present. Further surgery was considered but not performed. Follow-up evaluation with the orthopedist on 25 January 2005 (8 months prior to separation) reported no ongoing radicular symptoms. Examination showed normal spinal curvature and neurologic findings. The narrative summary (NARSUM) on 19 May 2005 (4 months prior to separation) reported that low back pain was almost continuous since the onset of the flare-up in October 2004, but waxed and waned in severity. He was unable to run, and high impact activities, stooping, or prolonged sitting exacerbated the condition. Examination showed normal lower extremity strength and no sign of nerve root irritation.

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported lumbar pain was not usually present at rest, but was produced by activities. It was alleviated by going to bed at night. Running one-eighth of a mile also caused pain. Sometimes there was radiation of pain to the right buttock and leg. He used pain medication for the spine no more than once per month. The examiner reported that electrodiagnostic studies performed in August 2005 (one month prior to separation) were negative for radiculopathy. Examination showed a normal gait and posture. Although there was a slightly abnormal lumbar lordosis, there was no spine tenderness or muscle spasm. Some increase in pain after repetitive motion was reported, but actual range-of-motion (ROM) measurements after repetition were not provided. The examiner stated that the CI “had no pain … with going from a seated position to a supine position or vice-versa.” Lower extremity muscle strength was normal, and signs of nerve root irritation were absent. The goniometric 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 ~4 Mo s . Pre-Sep VA C&P ~3 Mo s . Post-Sep
Flexion (90 Normal)
 70 ( 66,68,70 ) 45
Extension (30)
 30 ( 30,30,32 ) 30
R Lat Flexion (30)
 25 ( 25,29,27 ) 30
L Lat Flexion (30)
 30 ( 26,29,31 ) 30
R Rotation (30)
 30 ( 70,70,70 ) 30 ( 45 )
L Rotation (30)
 30 ( 70,70,70 ) 30 ( 45 )
Combined (240)
 215 195
Comment
 -- + End-range p ainful motion
§4.71a Rating
 10% 20%

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), while the VA rated the condition 20%, also coded 5243. The Board agreed that the respective ratings by the PEB and the VA were appropriate based on the available ROM data (i.e. 10% for flexion greater than 60 degrees but not greater than 85 degrees or combined ROM greater than 120 degrees but not greater than 235 degrees; and 20% for flexion greater than 30 degrees but not greater than 60 degrees). In assigning probative value to these somewhat conflicting examinations, it was noted from the C&P exam that painful motion occurred at the end-ROM with no evidence of attempts to proceed further; reduced flexion to 45 degrees seemed inconsistent with the normal to supernormal ROM’s in all other planes; measurements after repetition were not provided; and there was no pain when going from a seated position to supine or vice-versa (which appeared inconsistent with flexion limited to 45 degrees). The Board majority therefore assigned preponderant probative value to the Service data, which as previously stated justified a 10% rating. There was no evidence of muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour; therefore a 20% rating was not justified on this basis.

The Board also deliberated whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes, but could not find sufficient evidence which would meet the minimum criteria under that formula. The Board finally considered if additional disability was justified for lower extremity radiculopathy. The CI complained of intermittent lower extremity numbness and radiating pain. However, electrodiagnostic studies were negative for radiculopathy and examinations recorded normal muscle strength. 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. There is no evidence in this case of functional impairment attributable to peripheral neuropathy. While the CI experienced some radiating pain, 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 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 intervertebral disc syndrome 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 intervertebral disc syndrome condition and IAW VASRD §4.71a, the Board by a majority vote 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 20131220 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 XXXXXXXXXXXXXXXXXXXX, AR20150015854 (PD201302821)


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

        

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