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AF | PDBR | CY2014 | PD 2014 01210
Original file (PD 2014 01210.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX     CASE: PD -20 1 4 - 0 1210
BRANCH OF SERVICE: Army   BOARD DATE: 201 4 0924
Separation Date: 20050729


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88H/Cargo Specialist) 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 chronic low back pain (LBP), was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB was not in the record; however, the Formal PEB (FPEB) adjudicated chronic low back pain as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI disagreed with the FPEB’s findings; however, there was no indication of a US Army Physical Disability Agency review, and he was separated with disability severance pay.


CI CONTENTION : The CI writes: “I WASENT EVALUATED FOR ALL THE CONDITIONS I HAD BECAUSE THE TRAUMA THAT I SUFFER [sic] DURING MY ACTIVE DUTY SERVICE. CONDITIONS THAT THE DEPT OF VETERANS AFFAIRS CONNECT LATER TO SERVICE”.


 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 (BCMR).

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 military 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 within 12 months only to the extent that it reasonably reflects the disability at the time of separation.


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RATING COMPARISON :

Service FPEB – Dated 20050119
 VA - (1 Mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain
 5237 10% Low Back Sprain w/Fibrosis 5237 20% 20050630
Right Lower Extremity Weakness 8520 10%* 20050630
Left Lower Extremity Weakness 8520 10%* 20050630
Other x 4
Other X 0 (Not in Scope)
Combined: 10%
 Combined: 70%
Derived from VARD 20050915 (most proximate to Date of Separation)
*VARD dated 20060913 (14 months after separation) changed conditions and ratings resulting in a 100% combined rating effective 20050730 (the day after separation)


ANALYSIS SUMMARY :

Chronic Low Back Pain ( LBP ) Condition . The CI injured his back on 27 April 2003 when he fell 10 feet from a large truck and landed on his back on top of some M-4 rifles . He was medica l ly evacuated to a regional medical center overseas for evaluat ion by o rthopedics. The o rthopedist opined that the injury was non - operative and he was transferred state-side . The CI was again evaluated by an o rthopedist who noted that the CI had sharp 8/10 pain w ith tingling to the posterior thighs and knees, two episodes of incontinence and weakness of both lower extremities. The physical exam findings were a n antalgic gait, tender lumbar spine in the midline, and a positive straight leg raise (SLR) on the right ; however , there was normal motor, sensory and reflexes with 3/5 positive Waddell’s signs. The examiner diagnosed LBP with radicular signs and prescribed q uarters for 72 hours and treatment with non-ste roidal anti-inflammatory drugs . He also requested a magnetic resonance imaging (MRI) study that revealed minimal annular bulges at L4-5 and L5-S1 with no evidence of spinal canal narrowing and a nerve conduction study (NCS) with Electromyogram (EMG) . The NCS/ EMG was normal without evidence of a lumbar radiculopathy . A plain film lumbar spine X -ray showed moderate right scoliosis. A repeat lumbar spine MRI 4 months after the first MRI showed mild straightening of the lumbar lordosis. A lumbar spine b one s can showed mild scoliosis of the thoracic spine. The CI was followed by r ehabilitation m edicine for lumbar spasm that was unresponsive to medicine and was given a Botox injection and Lidocaine patches for pain control. He had 5 months of physical therapy where he received traction, ultrasound, stretching, back class and a transcutaneous electrical nerve stimulation unit. He was seen by a c hiropractor for manipulation ; however , that worsened the LBP , as did the facet blocks attempted by a p ain clinic provider. A third lumbar spine MRI showed a small area of scar/fibrosis just beneath the superficial fascia in the midline over the 3rd lumbar vertebra. There was no evidence of disc disease or spinal cord abnormalities noted . The CI continued with p hysical m edicine and the examiner noted an antalgic gait and chronic LBP from January 2004 to March 2005. Two months prior to separation, a second lumbar spine X -ray was normal. The CI was given a permanent L3 Profile for LBP . The MEB n arrative s ummary (NARSUM) exam accomplished 1 1.5 months prior to separation noted the CI had severe LBP without relief from any conventional therapy. He reported 10/10 pain in both lower extremities with numbness. He reported that he required assistance with dressing and washing and occasionally with other activities of daily living. The examiner opined that the CI had functional impairments of an inability to wear chemical defense equipment, an inability to run, jump, or march, an inability to lift or carry over 20 pounds, perform any strenuous activity or stand over 10 minutes per episode. The NARSUM physical exam findings are summarized in the chart below . The MEB Specialty Consult documented continued stabbing back pain rated at 9/10 with associated bilateral leg numbness and pain. H e had difficulty getting out of bed in the morning secondary to his pain and could no longer perform his MOS. T he VA Compensation and Pension (C&P) exam , accomplished a month prior to separation , noted that the CI had constant pain, weakness, tingling and numbness in both legs and limited range-of-motion ( ROM ) of the back . The examiner noted that the CI could not function when the pain occurred. The VA C&P physical exam findings are summarized in the chart below . Ten months after separation , the CI was evaluated at the s pinal c ord i njury clinic for worsening of his condition. He was diagnosed with C auda E quina syndrome with neurogenic bowel and bladder.

 There were two 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 In Degrees
NARSUM 1 1.5 Mo s . Pre-Sep
 VA C&P 1 Mo. Pre - Sep
Flexion (90 Normal)
No ROM’s
 I nability to perform ROM due to pain
Combined (240⁰)
Comment
 Stands/sits with mild waist flexion , resistant to straightening of spine; Pos. tenderness to palpation(TTP) midline & para - lumbar muscle s; Pos. muscle spasm; Pos. SLR bilaterally ; Normal reflexes/motor/sensory ; Pos. 3/5 Waddell’s signs Abnormal gait, required wheelchair; Pos. m uscle spasm & SLR bilaterally; Pos. weakness both legs; No bowel or bladder dysfunction ; Pos. abnormal reflexes ; No atrophy noted
§4.71a Rating
 20% (PEB 10%) 20%
8520
 - Right Leg 1 0 vs 2 0 %/Left Leg 1 0 vs 2 0%
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The VA based their initial coding on the pre invalid font number 31502 - invalid font number 31502 discharge exam and coded the LBP with invalid font number 31502 f invalid font number 31502 ibrosis condition as 5237 and rated at 20%. invalid font number 31502 The VA also coded the invalid font number 31502 r invalid font number 31502 ight invalid font number 31502 l invalid font number 31502 ower invalid font number 31502 e invalid font number 31502 xtremity invalid font number 31502 invalid font number 31502 w invalid font number 31502 eakness invalid font number 31502 and invalid font number 31502 l invalid font number 31502 eft invalid font number 31502 l invalid font number 31502 ower invalid font number 31502 e invalid font number 31502 xtremity invalid font number 31502 w invalid font number 31502 eakness as invalid font number 31502 separate invalid font number 31502 conditions as 8520 invalid font number 31502 and rated each condition at 10% each. invalid font number 31502 A later invalid font number 31502 VA rating decision invalid font number 31502 reflected worsening of the CI’s condition and changed the condition invalid font number 31502 s and ratings resulting in a 100% combined rating effective the day after separation. invalid font number 31502 The Board con invalid font number 31502 s invalid font number 31502 i invalid font number 31502 d invalid font number 31502 ered the preponderance of evidence including both the MEB and VA C&P exams invalid font number 31502 with regard to the disability caused by his back and leg condition at the time of separation. invalid font number 31502 The invalid font number 31502 g invalid font number 31502 eneral invalid font number 31502 r invalid font number 31502 ating invalid font number 31502 f invalid font number 31502 ormula for invalid font number 31502 d invalid font number 31502 iseases and invalid font number 31502 i invalid font number 31502 njuries of the invalid font number 31502 s invalid font number 31502 pine criteria for a 20% rating include “muscle spasm or guarding severe enough to result in an abnormal gait invalid font number 31502 . invalid font number 31502 ” Both the MEB and the VA exams demonstrated an antalgic gait, severe LBP, and muscle spasm consistent with the 20% rating criteria. invalid font number 31502 The evidence invalid font number 31502 documents invalid font number 31502 that the CI’s condition invalid font number 31502 deteriorated invalid font number 31502 between the NARSUM (11.7 months prior to separation) and the VA exam ( invalid font number 31502 a invalid font number 31502 month prior to separation) and continued to invalid font number 31502 deteriorate invalid font number 31502 after separation invalid font number 31502 to the point of being granted a 100% disability rating by the VA. invalid font number 31502 invalid font number 31502 After the FPEB adjudicated the case, the CI’s condition worsened and he developed bilateral radicular symptoms with weakness of both legs as documented in the pre-separation C&P exam. invalid font number 31502 The Board considered whether invalid font number 31502 an invalid font number 31502 additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated invalid font number 31502 r invalid font number 31502 ight and invalid font number 31502 l invalid font number 31502 eft lower extremity 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 radiculopathy is subsumed under the general spine rating invalid font number 31502 formula invalid font number 31502 as specified in §4.71a. The sensory component in this case ha invalid font number 31502 d invalid font number 31502 no functional implications; however, clear pre-separation evidence of bilateral lower extremity weakness can be linked to a significant functional consequence. Therefore, there is evidence of a separately ratable functional impairment (with fitness implications); and, the Board can support a recommendation for additional ratings based on peripheral nerve impairment of the right and left legs. invalid font number 31502 Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the invalid font number 31502 “ invalid font number 31502 mild invalid font number 31502 ” invalid font number 31502 vs. invalid font number 31502 “ invalid font number 31502 moderate invalid font number 31502 ” invalid font number 31502 distinction. Members agreed that a fair threshold for the invalid font number 31502 “ invalid font number 31502 moderate invalid font number 31502 ” invalid font number 31502 rating should entail functionally significant motor and/or sensory impairment encroaching on some occupational tasks. invalid font number 31502 The nerve involved in the CI’s bilateral radiculopathy is the sciatic nerve and incomplete paralysis of that nerve is rated using VASRD code 8520 which is copied below for the reader’s convenience: invalid font number 31502

8520 Sciatic Nerve: Paralysis of:
Incomplete:
Severe, with marked muscular atrophy 60
Moderately severe 40
Moderate 20
Mild 10

After a lengthy discussion , Board consensus was that based on the CI’s condition at the time of separation, the CI met the “ mild ” rating threshold under code 8520 which is consistent with a 1 0% as initially granted by the VA . 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. Additionally, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the right and left leg radiculopathy condition favors their recommendation as separate, additional unfitting conditions for a disability rating. They are appropriately coded 8520 and meet the VASRD §4.124a criteria for a separate 10% rating for each leg.


 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 c hronic LBP condition, the Board unanimously recommends a disability rating of 20 %, coded 5237 IAW VASRD §4.71a. In the matter of the right leg radiculopathy condition, the Board by a 2:1 vote recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a. In the matter of the left leg radiculopathy condition, the Board by a 2:1 vote recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a. The single voter of dissent elected not to submit a minority opinion. 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 2 0%
Right Leg Radiculopathy 8520 1 0%
Left Leg Radiculopathy 8520 1 0%
COMBINED (w/ BLF) 4 0%
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The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 140130 w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20140018990 (PD201401210)


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 40% 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 40% 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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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