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AF | PDBR | CY2013 | PD2013 00096
Original file (PD2013 00096.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX   CASE: PD1300096
BRANCH OF SERVICE: Army  BOARD DATE: 20130710
SEPARATION DATE: 20050109


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 POLICEMAN) medically separated for a back condition. The CI’s back pain began in August 2000, with a disk herniation at L4-L5 diagnosed by magnetic resonance imaging (MRI) in December 2000. The back 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 back condition, characterized as lumbar spine, degenerative disc disease was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded four other conditions, see rating chart below, that do not fall below retention standards for PEB adjudication. The PEB adjudicated chronic radiating low back pain (LBP) as unfitting, rated 10% with likely application of US Army Physical Disability Agency (USAPDA) pain policy and the Veterans Affairs Schedule for Rating Disabilities (VASRD). As identified in the rating chart below, the PEB adjudicated the four other conditions submitted by the MEB as not unfitting. The CI made no appeals, and was medically separated.


CI CONTENTION: The CI writes: “to ensure fairness and accuracy as implemented by Congress.”


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; and, 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.


RATING COMPARISON:

Service IPEB – Dated 20041203
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
CHRONIC RADIATING LOW BACK PAIN
 5243 10% DEGENERATIVE DISC DISEASE, L4-S1 5242 40% 20050726
PTSD
 Not Unfitting PTSD 9411 10% 20050726
R RING FINGER COLD SENSITIVITY
 Not Unfitting DECREASED SENSATION AND COLD SENSITIVIY AND COLD INTOLERANCE ON THE R RING FINGER SECONDARY TO A PARTIAL DEGLOVING 8599-8515 0% 20050726
RETROPATELLAR PAIN SYNDROME
 Not Unfitting PATELLAFEMORAL SYNDROME, L KNEE 5099-5003 10% 20050726
PES PLANUS
 Not Unfitting FLEXIBLE PES PLANUS 5276 0% 20050726
No Additional MEB/PEB Entries
 Other x 0 20050726
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 50809 ( most proximate to date of separation [ DOS ] ).
ANALYSIS SUMMARY:

Chronic Low Back Pain. The first entry in the service treatment record (STR) regarding low back is from 17 June 2004 when the CI had an injury after firefighter carry training and had pain with radiation to the left leg after training that morning. He gave a history of herniated L5-S1 nucleus pulposus and that back surgery was a possibility in 2002. He had a normal X-ray performed that day. He had an MRI on 9 July 2004 due to recurrent pain radiating to buttocks and posterior left leg and positive straight leg raising (SLR) test which showed: L3-4 mild broad based disk bulging, L4-5 asymmetric broad based disk protrusion with marked narrowing of the left lateral recess and compression of the left L5 nerve root, and L5-S1 with a asymmetric broad based disk protrusion to the right with narrowing of the lateral recess and compression of the S1 nerve root, and left lateral recess narrowing, but less evidence of definite nerve root compression. A private orthopedic surgeon saw him on 8 August 2004 and surgery was not recommended. He was then followed up by the orthopedic clinic for continuous pain and acute exacerbations, the CI’s unit had deployed to Iraq, and an MEB was initiated. The record shows that the CI had spinal surgery 7 years after separation, on 21 February 2012. The orthopedic MEB consult on 13 September 2004, 4 months prior to separation, noted no tenderness, left positive SLR, no spasm, no deformity, reflexes at SI +1 (ankles slightly decreased), and L4 +3 (knees slightly increased), and decreased sensation of the left inner calf to outer foot. ROM were flexion 45 (normal 90) with pain, extension 10 degrees (normal 30), left and right flexion at 30 (normal is 30), and left and right rotation equal at 30 (normal 30). The narrative summary (NARSUM) on 8 November 2004, 2 months prior to separation, notes a history of LBP since August 2000. An MRI performed in Korea on 23 December 2000 showed a disk herniation at L4-5. He was treated conservatively and returned to duty. He had two more flares in Germany 2002, and one during deployment to Ukraine, and no flares while in Iraq, and then on 17 June 2004 had recurrence after a training injury. The CI reported that at that time he had intermittent LBP radiating to one or the other lower extremity, left more often than right, provoked by sudden movements, sitting or standing more than 30 minutes, repeated bending, heavy lifting, and impact activities. Physical examination performed on 13 September 2004 is cited that showed tenderness at the lumbosacral junction down to the left sciatic notch, no spasm, no deformity, positive left SLR, normal +2 reflexes at the knees and ankles, decreased sensation of the left inner calf to the foot consistent with L5 nerve root dysfunction, normal strength. Ranges-of-motion (ROM) repeated on the date of exam, showed forward flexion of 32, up to 45 degrees (normal is 90), limited by pain; extension at 16 degrees (normal 30), flexion limitation was confirmed with an inclinometer measurement of 38 degrees (normal 60); extension to 16 degrees, left lateral to 25 to 32 degrees (normal 30), right lateral to 20 to 27 degrees (normal 30), and right and left rotation 40 degrees (normal 30). There was a positive left leg SLR, negative of the right, normal strength, normal reflexes. At the VA Compensation and Pension (C&P) exam performed 6 months after separation on 26 July 2005, the CI reported back problems since August 2002 while stationed in Korea. He had flare-ups once or twice a year. He reported discomfort with prolonged sitting or standing, with shooting pain and pinching to his left hip occasionally all the way to his toes, without a flare since discharge from the Army. He had no limitations on his physical activity, and was cautious when lifting anything. He had no chiropractor or physical therapy, and was capable of biking 10 miles a few times a week, and run 2 to 3 miles. Normal strength, positive left SLR. ROM forward flexion 20 degrees (normal 90), extension 25 degrees (normal 30), right lateral 40 degrees (normal 30), left lateral 30 degrees (normal 30), and right and left rotation described as full.

The Board directs attention to its rating recommendation based on the above evidence. The Board considered VASRD diagnostic code 5243 (intervertebral disk syndrome) used by the PEB for a 10% rating. The Board also did not find evidence in the STR of incapacitating episodes and the general rating formula for diseases and injuries of the spine was used for a possible higher rating. There was a clear contradictory worsening in the ROM at the same time that there were reported improvement in the clinical history given at the C&P examination, such as running and bicycling activities, and no further back pain exacerbations, which makes that examination less probative for adjudication at the time of separation. The Board then considered the NARSUM examination, which was consistent with the medical history, and previous documented ROM limitations. The Board noted the efforts by the NARSUM examiner to confirm the limitations with an inclinometer, but that measurement of 38 degrees was not IAW VASRD §4.46 (accurate measurement) standard of goniometric measurements, although clearly in an effort to document and confirm the limitation of motion, it took away the reproducibility and probative value of the ROM. The Board did not find evidence in the STR for any injury, or reported worsening of the back condition to account for the decreased ROM in the NARSUM exam of 32 to 45 degrees from the orthopedics measurements 2 months prior to the NARSUM of 45 degrees of flexion. The Board concluded that reasonable doubt did not overcome the clinical evidence of prior or the simultaneous measurements on the NARSUM. Therefore, the orthopedic MEB consult was assigned a more probative value for adjudication. The Board concluded that the CI did not meet the 40% rating criteria; and met the 20% criteria of: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board then considered code 5242 (degenerative arthritis of the spine) used by the VA for a 40% adjudication. The VASRD instructs to use the general rating formula for diseases and injuries of the spine as already discussed. The Board considered whether an additional rating could be recommended under a peripheral nerve code, for the associated sciatic radicular type pain with positive left SLR at separation, and left L5 decreased sensation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to 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 motor weakness in evidence linked to significant functional consequence. The sensory component in this case had no functional implications. There was thus 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 disability rating on this basis. 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 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, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

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



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130301, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / XXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXX, AR20130021848 (PD201300096)


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 to 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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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