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AF | PDBR | CY2013 | PD2013 00194
Original file (PD2013 00194.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXX     CASE NUMBER: PD 13 00194
BRANCH OF SERVICE: Army   BOARD DATE: 2013 08 15
Separation Date: 20080105


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (97B20/Counter Intelligence Agent) medically separated for chronic low back pain (LBP). In September 2006, he suffered a back injury during Special Forces Selection Training while carrying a very heavy load with a team of soldiers. The CI experienced immediate back pain, right leg numbness, weakness and bladder incontinence. Later he was diagnosed with neurogenic bladder and lumbar nerve root damage. Despite numerous non-operative treatment modalities and a variety of narcotic medications, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U2/L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded traumatic injury to the lumbar area complicated by nerve root damage of the lumbar nerve root damage of the lumbar nerve roots manifested by initial severe lower back pain, right leg weakness and numbness, and neurogenic bladder, currently with continued lower back pain and reduced sensation in the right lower extremity, unresponsive to all appropriate and available treatment modalities to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501. The MEB also forwarded hypertension and recurrent right shoulder discomfort as medically acceptable. The IPEB adjudicated chronic LBP to include lumbar nerve roots, right leg numbness and weakness, and neurogenic bladder conditions as unfitting, rated 10% with application of the Veterans Affairs Schedule of Rating Disabilities (VASRD) . The CI appealed to the Formal PEB (FPEB) and US Army Physical Disability Agency which affirmed the IPEB rating. The CI was then medically separated.


CI CONTENTION : “Appealed medical discharge rating as required, at formal medical review with counsel present, review board stated that I proved my case of discharging greater than 30%, and then they returned with a 10% rating.”


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 low back, lumbar nerve roots, right leg numbness and weakness, and neurogenic bladder conditions are addressed below. The CI did not contend for the right shoulder and hypertension conditions; and, therefore they are not 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 (BCMR).

The Board acknowledges the CI’s inference that his disability disposition was unfair. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.


 RATING COMPARISON :

Service FPEB – Dated 20070731
 VA* - (2 Weeks Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain to include Lumbar Nerve Roots, Right Leg Numbness and Weakness and Neurogenic Bladder
 5237 10% Degenerative Disc Disease (DDD) Thoracic Spine 5243 20% 20071213
Neurogenic Bladder 7542 60% 20071213
Right Shoulder Discomfort
 Not Unfitting No Corresponding VA Entry 20071213
Hypertension
 Not Unfitting Hypertension 7101 0% 20071213
No Additional MEB/PEB Entries
 Other x9 20071213
Rating: 10%
 Combined: 80%
* Derived from VA Rating Decision (VARD) dated 20080717 (most proximate to date of separation [DOS])


ANALYSIS SUMMARY : The PEB rated c hronic LBP, right leg numbness and weakness , and i ncontinence under VASRD code 5237 , l umbosacral or cervical strain . That code is rated using the g eneral r ating f ormula for d iseases and i njuries of the s pine which contains several clarifying footnotes such as: “Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code” and IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation . If the Board judges that two or more separate codes and ratings are warranted in such cases, it must satisfy the requirement that each residual/associated condition was reasonably justified as separately unfitting, with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB. There is no question that the FPEB adjudicated the chronic LBP condition as unfitting . T herefore , the Board will submit a rating recommendation for that condition at the time of separation . Initial Board deliberations considered if the associated right leg weakness / numbness and the residual neurogenic bladder condition were separately unfitting warranting separate coding and rating recommendations. Concerning the right leg weakness/numbness, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications. There was no objective motor impairment that could be linked to significant physical impairment. Board members agree that there is insufficient evidence of functional impairment due to the right leg weakness/numbness condition to determine that is was separately unfitting . T herefore, the Board cannot recommend an additional disability rating for that condition . Board deliberation next considered if the residual neurogenic bladder condition was separately unfitting. The co mmander’s statement does mention the “loss of bladder control” but that was pertaining to the immediate post- injury period. There were no profile actions that identified or included the neurogenic bladder condition. The service treatment record (STR) documents continued leakage of urine requiring continued absorbent material use up to the DOS . It is reasonable to conclude that basic soldering duties , along with those of the CI’s MO S, would be negatively impacted by this ongoing bladder related disability. Board members agree that the functional impairment caused by the neurogenic bladder condition was reasonably justified as separately unfitting warranting a separate code and rating recommendation.

Chronic LBP (Lumbar Nerve Roots and Right Leg Numbness and Weakness) Conditions . The CI had a traumatic injury to his back in September 2006 . H e was seen in the e mergency r oom (ER) 3 days after the injury where a plain film X -ray of the lumbar spine was normal and he was treated with narcotic pain medications and placed on bed rest for 3 days. Within the next week, he experienced continued LBP with radiation of the pain into his right foot and developed urinary incontinence and presented to the ER. He was evaluated by a neurologist and urologist, and after a history and physical exam, and two magnetic resonance imaging (MRI) studies (lumbar spine MRI was normal while a thoracic spine MRI showed a small central disc bulge at T7-8 which effaced the thecal sac , but did not distort the spinal cord) were performed, the diagnosis of neurologic bladder was confirmed. Over the ensuing 2 months, the CI initially required an indwelling bladder catheter, then intermittent self-catheterization and finally in November 2006 a note documents that the CI “… now has bladder control.” Also during that 2 - month period, the CI’s back pain with radicular symptoms continued and he was treated with epidural steroid injections, physical therapy and high dose narcotic medications. The CI experienced several seizures that proved to be the result of the high dose morphine as the seizures resolved after his medications were changed. Over the 14 months between November 2006 and his day of separation, the CI continued treatment for his chronic LBP , complained of episodes of urinary incontinence, had a repeat lumber spine MRI (suggestive of muscle spasm otherwise normal) and required very high doses of narcotic medications.

There were two goniometric range - of - motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.
Thoracolumbar ROM
(Degrees)
 MEB 7 Mo s . Pre-Sep VA C&P 24 days Pre-Sep
Flexion (90 ° Normal)
 35° 30 °
Combined (240 ° )
 130 ° 140 °
Comment
 T enderness to palpation right lumbar paraspin als; P ain on motion in thoracolumbar area, motor/sensory/reflexes n ormal ; M uscle spasms with extension; U ses cane; 2/5 Waddell ’s signs Antalgic gait; uses cane; Pos itive paraspinal tenderness; U nable to stand on toes; P ain w/ ROM; strength , S ensory and reflexes n or m a l; Deluca criteria - yes
§4.71a Rating
 20% 40%

The n arrative s ummary (NARSUM) exam performed approximately 5 months prior to separation documented that the CI had radicular pain which radiated into the right leg down to the level of the foot and subjective symptoms of weakness in the right leg and an inability to remain i n one position for more than 10 minutes . A ctivities that involved the paraspinous muscles caused an exacerbation of his pain , he required a cane for ambulation and was frequently awakened at night due to back pain. The physical exam findings are summarized in the chart above. The examiner opined that the CI’s “prognosis for manual labor is poor” and that his prognosis for further military service was poor based on his medical condition and restrictions in that he was unable to perform his MOS duties and was not deployable .

The VA Compensation and Pension (C&P) examination accomplished 24 days prior to separation noted that the CI required a cane and at times a wheeled walker and that he suffered from constant sharp shooting daily LBP which radiated down the right leg to the great toe. He was limited to walking only four blocks and was unable to perform his chores, exercise, and sports ; and , his disability had a mild to severe impact on dressing , travelling and bathing. The C&P physical exam findings are summarized in the chart above.
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invalid font number 31502 The Board directs attenti invalid font number 31502 on to its rating recommendation invalid font number 31502 invalid font number 31502 based on the above evidence invalid font number 31502 . invalid font number 31502 invalid font number 31502 The PEB coded the chronic invalid font number 31502 LBP invalid font number 31502 pain condition as 52 invalid font number 31502 37 invalid font number 31502 invalid font number 31502 l umbosacral or cervical strain invalid font number 31502 and rated invalid font number 31502 1 invalid font number 31502 0%. The VA coded the degenerative disc disease of the t horacic s pine as 5243 ( intervertebral disc syndrome ) and rated at 20%. The g eneral r ating f ormula for d iseases and i njuries of the s pine considers the CI’s pain symptoms “ w ith or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.” The VA based their rating on the ROM measurements of 30 degrees thoracolumbar flexion, but misapplied the 20% rating as the CI ’s thoracolumbar flexion of 30 met the criteria for a 40% rating . The Board adjudged that the C&P examination was closer to separation and had the higher probative value. Although the CI did manifest symptoms that were suggestive of intervertebral disc syndrome, his MRI findings and lack of objective physical findings do not support the use of that 5243 code for rating purposes. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the invalid font number 31502 invalid font number 31502 c invalid font number 31502 hronic LBP condition.
Neurogenic Bladder (Incontinence). The CI had a well- documented history of neurogenic bladder symptoms which developed after the traumatic back injury. The CI was seen by a n eurolog ist for complaints of a lack of control of urine several times a day and developed difficulty initiating urination and sometimes the stream stopped on its own. Initially he required an indwelling bladder catheter then daily self-catheterization . In October 2006, t he u rologist noted there was an improvement in the bladder with self-catheterizing and he opined that the neurogenic bladder was likely related to a neuropraxia ( a temporary nerve injury usually lasting 6-8 weeks before full recovery) and was 90% resolved. However, the STR continues to document persistent urinary leakage and absorbent pad use up to the date of separation. The NARSUM also documents that the CI continued to have intermittent symptoms of urinary stress incontinence. An internal medicine examiner noted that the CI’s urinary retention partially resolved after 2 months leakage, which allowed for removal of the indwelling urinary catheter; however, the CI did continue to have to wear protective undergarments. Because of continued incontinence, the CI underwent a cystoscopy in July 2007 that supported the continued urinary problems, but stated that the evaluation was consistent with “primary bladder neck obstruction.” The urologist documented that the CI required four to six pads per day, including at night and urinated approximately once each hour during the day and slightly less at night. The CI was not aware of leakage with cough, sneeze or Valsalva; he just only noticed urine in the pad. The C&P exam noted urinary incontinence 10-15 times a day and approximately 3 times during the night; a weak and intermittent stream and the CI required seven changes of pads per day. The examiner also documented that the constant changing of pads was time consuming and directly affected his daily activities.

 The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the bundled i ncontinence condition as 5237 lumbosacral or cervical strain and rated 10%. The VA coded the n eurogenic b ladder condition as 7542 and rated at 60% , which r equires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. There was clear evidence throughout the STR that the CI’s neurogenic bladder symptomatology persisted up to and past the date of separation. Additionally, extensive Board deliberation resulted in the C&P exam being deemed the most probative document for rating purposes, although the NARSUM also documented “Currently continued leakage requiring pads 3-4 times/day.” The Board also considered how the FPEB arrived at their decision regarding the neurogenic bladder and concluded that undue emphasis was placed on two entries in the STR. One entry was made by an emergency room provider (7 months prior to separation) that stated “no loss of bladder control” and another made by a physical therapy provider (14 months prior to separation) who documented “Patient stated he now has bladder control.” Those are the only two pieces of evidence that document resolution of the neurogenic bladder, while there are over 10 other STR entries that document continued problems with bladder control within 6 months of separation. Both the urologist (6 months prior to separation) and the C&P examiner (within a month of separation) noted that the CI required 4 to 7 pads per day for the urinary incontinence. Rating under code 7542 is straight forward and copied below for the reader’s convenience:


7542 Neurogenic bladder: Rate as voiding dysfunction.

Voiding dysfunction:

Rate particular condition as urine leakage, frequency, or obstructed voiding. Continual Urine Leakage, Post-Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence:
Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day 60
Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day 40
Requiring the wearing of absorbent materials which must be changed less than 2 times per day 20

 After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 60% for the i ncontinence condition coded 7542.


 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 40%, coded 5237 IAW VASRD §4.71a. In the matter of the right leg numbness and weakness condition, the Board unanimously agrees that it was not unfitting and cannot recommend it for additional disability rating. In the matter of the neurogenic bladder condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 60%, coded 7542 IAW VASRD §4.115a. 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 ; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Low Back Pain
5237 4 0%
Right Leg Numbness and Weakness
Not Unfitting
Neurogenic Bladder
7542 60%
COMBINED
 8 0%
invalid font number 31502


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 130419 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXXXX , DAF
President
Physical Disability Board of Review



SFMR-RB                                                                         


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


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130021827 (PD201300194)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 80% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 80% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.






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                                                  XXXXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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