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AF | PDBR | CY2014 | PD-2014-01718
Original file (PD-2014-01718.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-01718
BRANCH OF SERVICE: Army  BOARD DATE: 20141219
SEPARATION DATE: 20010916


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 medically separated for chronic mechanical low back pain (LBP) with residual left leg pain. The condition could not be adequately rehabilitated to meet physical requirements or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic mechanical LBP with residual left leg pain condition, characterized as “chronic low back pain and residual left leg pain, status post L4/5 microdiscectomy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic mechanical low back pain with residual left leg pain” as unfitting, rated 10%, citing criteria of Department of Defense Instruction (DoDI) 1332.39 and AR 635-40. The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions”


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 20010731
 VA - (2 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Mechanical Low Back Pain w/Residual Left Leg Pain 5299-5295 10% Recurrent Central Disc Protrusion, Chronic Low Back Pain, and Intermittent Radiculopathy Status Post L4-5 Microdiscectomy 5293 20% 20010709
Other x 0 (Not in Scope)
 Other x 0
Combined: 10%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 10925 ( most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain w/Residual Left Leg Pain Condition. The CI developed LBP with radiation into his left leg (left lower extremity [LLE]) in October 1999. Conservative therapy was not effective and he underwent surgery (L4/5 microdiscectomy in April 2001) to remove a large disc protrusion (herniated nucleus pulpous). LBP and LLE pain returned following surgery and continued despite conservative therapy including epidural steroid injection. Repeat magnetic resonance imaging indicated a small recurrent disc protrusion. The narrative summary noted the CI additionally complained of occasional numbness in the left ankle (“intermittent”). Electrophysiology studies (NCV/EMG) were “suggestive for a mild L5 radiculopathy on the left side … most likely residual effect of the old radiculopathy, a possible acute mild L5 radiculopathy on the left could not be ruled out.” The CI was no longer taking any medications for pain.

The MEB physical exam documented a well healed scar, tenderness to the back, and forward flexion to 70 degrees with inability to “extend past neutral without pain.” Lower extremity strength and reflexes were normal. There were no sensory defects and he had a negative straight leg raise bilaterally (test for radicular signs). He was able to heel and toe walk without difficulty. The examiner indicated: “Pain scale: slight but constant.”

At the VA Compensation and Pension exam performed 2 months prior to separation, the CI reported “symptoms include pain, weakness of the left leg and back, stiffness of the back, and lack of endurance. The pain is described as sharp shooting down the leg intermittently. The back pain is constant. Flare-ups are described as distressing to horrible, occurring daily lasting for variable amount of time, worsened with any activity or no activity. He states he can be sitting still and reaching over with his hand or sneezing or coughing or bending or just sitting still and the pain will hit him suddenly. Symptoms improve with Percocet (narcotic pain medication).” He was taking Percocet 2-3 per day and Elavil (antidepressant also used for pain). Exam documented a well healed scar, with normal motor, reflex and sensory exam of the lower extremities. The back was tender with painful motion and “minimal weakness noted.” There was a positive test for left leg radicular symptoms (cross-over seated leg rise). Range-of-motion (ROM) was flexion to 60 degrees with extension to 15 degrees, lateral 35 degrees each side and rotation left 25 degrees and right 35 degrees. “ROM lumbar spine additionally limited by fatigue, weakness, lack of endurance as well as pain.” VA records indicated a 100% temporary convalescent rating (back surgery) in 2013, with return to a 20% back rating and addition of a separate 10% LLE radiculopathy rating under the newer VA Schedule for Rating Disabilities (VASRD) rating criteria.

The Board directed attention to its rating recommendation based on the above evidence. The 2001 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine. The Board considered whether a more favorable rating could be achieved under code 5293 (Intervertebral disc syndrome), since there was clinical support for disc pathology by imaging, NCV/EMG and symptoms of sciatica.

Although there was no objective motor or sensory loss, there were daily pain and activity limitations, with complaints of flares (“recurring attacks” as defined by 5293) which were disruptive to daily activities. Given the mild to moderate pain-limited motion and mild to moderate radiculopathy symptoms with flares, the Board adjudged that the CI’s disability picture at the time of separation was closest to the 20% criteria under code 5293. There was insufficient evidence of severe recurring attacks with intermittent relief or severe limitation of ROM to support any higher rating.
The additional surgery and symptoms over 10 years remote from separation were adjudged post-separation worsening and not indicative of the CI’s disability level at separation. 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 LBP with LLE pain 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. As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating the LBP with LLE pain condition was operant in this case and the condition was adjudicated independently of those instructions by the Board. In the matter of the chronic mechanical LBP with residual left leg pain condition, the Board unanimously recommends a disability rating of 20%, coded 5292-5293 IAW VASRD §4.71a. 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Mechanical Low Back Pain w/Residual Left Leg Pain 5292-5293 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140410, 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 XXXXXXXXXXXXXXX, AR20150009538 (PD201401718)


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                       XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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