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AF | PDBR | CY2014 | PD-2014-00333
Original file (PD-2014-00333.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2014-00333
BRANCH OF SERVICE: Army  BOARD DATE: 20141223
SEPARATION DATE: 20041028


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Unit Supply Specialist) medically separated for a back and left lower leg condition. The back and left lower leg 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 P1U1L3H1S1 profile and referred for a Medical Evaluation Board (MEB). “Herniated lumbar disc and lumbosacral radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded six other medically acceptable conditions (knee pain, right ankle pain, intermittent headache, depression, gastroesophageal reflux, and mild hearing loss). The Informal PEB adjudicated both “chronic low back pain secondary to herniated nucleus pulposus L4/L5” and “pain and mild weakness left lower extremity due to herniated nucleus pulposus L4/L5” as unfitting, rated 10% each with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and therefore not ratable. The CI made no appeals and was medically separated.


CI CONTENTION: “I understand that my conditions were underated when separated from the military. Even many of them were not considered by the PDBR at that time. The VA has acknowledge most of them wich currently comes to a 70%. Many of the conditions listed below were overlooked by the PDBR. I insisted to my orthopedist to start working on all my physical issues by the only concentrated on the back pain issue, therefore I was never treated properly. I should have been separated from my active service with a medical discharge. It has been difficult to adjust my daily life with all my medical conditions but I try my best to move on for my family and for myself.” His complete submission, with attachments and supplemental attachments, are attached 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 Veterans Affairs Schedule for Rating Disabilities (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 :

Service IPEB – Dated 20040826
 VA - (11 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
LBP Secondary to HNP L4/L5 w/o Current Neural Impingement 5243 10% Left L4-5 Herniated Disc w/Contact with the Left L4 Nerve Root w/Lumbar Spasm and bilateral Radiculopathy 5243 20% 20050919
Pain and Mild Weakness, LLE 5243-8520 10%
Chronic Right Ankle Pain Not Unfitting NO VA ENTRY
Depression Not Unfitting Dysthymic Disorder 9433 10% 20051027
Gastroesophageal Reflux Not Unfitting GERD 7399-7346 10% 20050923
Other x 3 (Not in Scope)
 Other x 5
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VARD) dated 20051208 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY: The Board noted that the back pain condition and left lower extremity weakness (radiculopathy) were discussed together in the clinical records. The Board will discuss them together to avoid clerical repetition of the record then separate them for individual rating consideration.

LBP with Herniated Disc Pulpous and Mild Weakness Left Lower Extremity. The narrative summary (NARSUM) noted the CI developed low back pain (LBP) during training in 2000. This was accompanied with radiation of the pain to the right hip, buttock and right leg. Subsequently, intermittent numbness in the right foot and weakness of the right leg developed.      Magnetic resonance imaging of the low back on 18 December 2003, revealed a protruding disc in the lower back with contact of the right nerve root to the leg. On 22 December 2003, the CI reported being able to run 4 to 6 miles without discomfort. On physical medicine and rehabilitation (PMR) evaluation on 14 January 2004, decreased reflexes , decreased sensation in the right foot and mild weakness (4+/5) in one isolated muscle in the lower leg, identified as the anterior tibialis muscle, were reported. No other motor weaknesses in the leg were noted. On a physical therapy evaluation on 1 April 2004, the CI’s gait was mildly antalgic. The motor strength in the right leg was reported as “decreased” and was felt secondary to pain or and an “inconsistent effort.” No muscle atrophy was present. Reflexes in the right leg were decreased. A repeat MRI of the back on 13 May 2004, revealed the previously described disc protrusion to be smaller in size and to no longer have contact with the right L-4 nerve root.

At the MEB NARSUM evaluation on 23 June 2004, 3 months prior to separation, the CI reported continued back pain with radiation. He noted no difficulties with bowel or bladder function. The MEB physical exam reported a normal gait. Multiple areas of tenderness to palpation were present over the lower back. Motor weakness without muscle atrophy, limited to the anterior tibialis muscle in the right lower leg, was present with some decreased sensation over the right foot. Right leg reflexes were slightly reduced. Other pertinent findings from this exam are recorded in the chart below.

At the VA Compensation and Pension (C&P) spine exam performed 11 months after separation, the CI reported continued radiation of back pain to his legs, numbness in his right toes, but no bowel or bladder difficulties. He noted no episodes of incapacitation in the last year from the back condition. On physical examination, gait, posture and spinal contour were normal. No spasm of the back muscles was reported. Normal muscle strength and tone without atrophy was recorded in all lower extremities. Reflexes in the right leg were slightly decreased compared to the left and slight decreased sensation was reported over the left foot. Other pertinent findings from this exam are recorded in the chart below.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below.

Thoracolumbar ROM
(Degrees)
 MEB ~ 4 Mo. Pre-Sep
(20040623)
VA C&P ~ 11 Mo. Post-Sep
(20051027)
Flexion (90 Normal)
 50 60
Extension (30)
 10 30
Combined (240)
 180 210
Comment
 Pain on lumbar extension; gait normal Painful motion; No DeLuca

The Board directed attention to its rating recommendation based on the above evidence. The PEB and the VA rated the back condition under the same code, 5243 (intervertebral disc syndrome) but at different rating levels. The PEB rated 10% citing spinal ROM limited by pain and the VA rated the condition 20%, citing flexion of 60 degrees with pain. Under code 5243, a rating of 10% requires forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees. The next higher rating of 20% requires flexion of the lumbosacral spine greater than 30 degrees, but not greater than 60 degrees. The next higher rating of 40%, requires flexion of the lumbar spine of 30 degrees or less. The Board agreed that the record in evidence supported the criteria for a rating of 20%, but no higher, for decreased range of motion of the lumbosacral spine IAW §4.71a. The Board considered a rating under code 5243, incapacitating episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician. The record documents no incapacitation under this definition in the 12-month period prior to the MEB examination. The Board agreed that no rating could be recommended under this code. The Board found no other appropriate codes for consideration. 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 back pain condition coded 5243.

The PEB adjudicated the CI’s unfitting neuropathy of the left leg manifested by decreased spinal reflexes, decreased sensation of the right foot and slight motor weakness of the left leg. This was rated 10% coded 8520 (Incomplete paralysis/sciatic nerve/ mild), IAW VASRD §4.123. A higher rating under this code of 20%, requires the condition to be ‘moderate.’ The VA Rating Decision reported that the neurologic findings on the C&P evaluation “do not allow a separate compensable rating.”

The Board noted that the PEB adjudicated a neuropathy in the left leg. The preponderance of evidence in the record documents the condition to involve the right leg. The Board presumed that this was a PEB typo and proceeded with an adjudication of the appropriate right leg condition. The Board agreed there was ratable peripheral nerve impairment in this case as right leg motor weakness was present on the more proximate NARSUM evaluation. The Board agreed that the sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating.

The Board noted that a single muscle in the right leg, the anterior tibialis, was identified in the record as the source of the muscle weakness in the neuropathy condition. The Board agreed that established medical principles confirm that this muscle provides motor function to the foot for dorsiflexion and inversion and that this muscle is enervated by the deep peroneal branch of the common peroneal nerve. The Board noted that the VASRD had a specific code for rating dysfunctions of this nerve, code 8523 (deep peroneal branch). The Board noted the PEB rated the condition under code 8520 (sciatic nerve), but agreed that code 8523 was the more appropriate code for use in its rating consideration as it specifically approximated the clinical picture. Under code 8523, a “mild” condition meets the criteria for a 0% rating; a higher rating of 10% requires the condition to be “moderate;” a higher rating of 20% requires the condition to be “severe.” The Board consensus was that the record in evidence supported the condition to be “mild” as the motor defect was clinically mild (+4/5) and description of gait, which would be expected to be abnormal if significant dysfunction of the anterior tibialis muscle was present, was normal on the NARSUM evaluation. The Board agreed that the neuropathy condition met the criteria for the 0% rating, coded 8523. The Board found no other appropriate codes for rating consideration. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the neuropathy condition coded 8523, IAW §4.123.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that contended not unfitting conditions below were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Chronic Right ankle pain. The CI developed chronic pain in his right ankle felt secondary to Achilles tendinitis. This was exacerbated by wearing boots. This condition was treated with arch supports heel lifts and oral nonsteroidal anti-inflammatory medication.

Depression. The CI was treated with medication in 2002 and 2004 for depression related to legal military issues and pending deployment. On the VA C&P mental health exam, 12 months after separation, the CI reported being unable to work because of his back condition. On mental status exam (MSE), a depressed mood was reported. The remainder of the MSE was normal. A Global Assessment of Function (GAF) of 70 was assigned (GAF: 61-70-some mild symptoms or some difficulty in social, occupational or school functioning, but generally functioning pretty well). The record contains no emergent clinic, emergency room visits or hospitalizations for any mental health condition.

Esophageal reflux (GERD): The CI had a long history of heart burn for which he took anti-acids. On gastroenterology (GI) assessment on 18 December2003, no complications of GERD or indication for further GI evaluation was found. The CI was advised to decrease intake of spicy foods, smoking and alcohol intake. An appropriate anti-reflux medication was begun and the CI was instructed to return as needed. The record contains no emergent clinic, emergency room visits or hospitalizations for any GI condition.

The contended conditions above were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. At the NARSUM evaluation, the CI reported “none of these interfered with his ability to perform his MOS duties or interfered with his ability to serve on active duty.” After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for contended conditions, and so no additional disability ratings are recommended.


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 back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a. In the matter of the neuropathy condition, the Board unanimously recommends a disability rating of 0%, coded 8523 IAW VASRD §4.123; however, as this provides no rating benefit to the CI, the Board, recommends no change in the PEB adjudication. In the matter of the contended right ankle pain, depression, and esophageal reflux conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 20130914, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXXXXX
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 , AR20150014371 (PD201400333)

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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