Back injuries

Jason Perry

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What the Army Physical Disability Agency does to Soldiers with back or neck injuries is one of the most clearly erroneous actions in the Army PDES. AR 635-40, B-29e., states "...Ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found. Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion. Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion." The APDA then states in Issue and Guidance #1 that "...AR 635-40, paragraph B-29e allows rating of limitation of motion only when that limitation is the result of a mechanical limitation (loss of joint integrity; muscle loss; contracture; malunion). Limitation resulting solely from pain is not ratable. If a case involving “some” limitation is rated under DC 5003 at 10% per joint (versus 0%) based on pain alone, the intent of AR 635-40 is violated." Taken together, the result is that a Soldier who has any limitation of motion based on pain loses out on any rating for back or cervical spine conditions based on range of motion. The Soldier may have a joint fusion, may have hardware implanted, and or may be barely able to bend at all. The range of motion limitation can even be documented by the treating physician. However, if there is evidence of painful motion, the Board will discard the range of motion limitation. I have even seen cases where the orthopedic specialist will state in the Soldiers medical notes that "limitation of range of motion is due to mechanical factors." Even so, the PEB, following the direction of the APDA, will not rate the loss of range of motion. What is usually left is either a finding that the Soldier has tenderness on palpitation or muscle spasms (which warrants a 10% rating) or spasms resulting in an abnormal gait (which warrants a 20% rating).

The Army is interpreting the VASRD in such a way that flies in the face of established case law issued by the United States Court of Appeals for Veterans Claims. I think that if a Soldier has a clearly documented limitation of range of motion of the spine and challenges this policy in Federal Court there is a high likelihood for success. In the mean time, though, the Soldier should be prepared for the application by the APDA of the current policy. That means no more than a 20% rating. For reasons that I will discuss in another post, Soldiers should not concur with the Boards findings if they fall into the situation described above and do not receive at least a 30% rating.
 

TML28

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Parachute Injury

As a result of mid-air collision, I burned in from about 100ft. on a training jump, shattering my right wrist, heel, and suffering a burst fracture in my L1 vertabrae. I had surgery on the wrist, with a titanium plate and screws implanted and surgery on the heel with steel plate and screws implanted. Luckily, while I was in a back brace for 4 months , I have thus far avoided back surgery.
While the wrist has healed very well, my back is in constant pain despite retaining all of my range of motion. My heel, on the other hand , has very limited motion making walking difficult and is also in persistent pain . I am currently awaiting a decision from the Informal PEB since my life as an 11B is history.
My interpretation of the VASRD, was similar to your own, in that, the maximum I can be rated for both my back and heel is probably 10% each. Considering the impact that these injuries are going to have on the rest of my life, a few grand and goodbye seems like a slap in the face. However, I don't want anything more than what is fair. What is fair? Especially seeing so many soldiers who are really in need, considering that I have my limbs and can walk , should I just accept the findings and take it up with the VA or fight for the retirement?
 

broomrider97

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Jason

First let me say thank you for putting up this site. You have provided a ton of helpful information!

Your last sentence in the first paragraph is exactly how the PEB rated my husband; muscle spasms resulting in an abnormal gait (20%). They rated him under 5243.

Our problem with the rating is that they have totally left out the primary injury which is the neurological damage. All of which has been documented by a Neurosurgeon, 2 MRI's, EMG studies, and several other tests.

Social Security awarded him permanent disability within 30 days of submitting his package to them, and he was just granted membership into the PVA. It's kind of hard to understand how the PEB can only come up with a 20% rating.

But this is why we keep fighting it!
 

Jason Perry

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What is fair?

TML28,
A lot of Soldiers ask that question, what is fair? You have to ultimately answer that question for yourself, but I will throw out a few thoughts that if you agree with them will lead to you fighting anything less than what you deserve. The first is that what is fair is what the law says you are entitled to receive. So, if your injuries cut short your military career you are entitled to a hearing to determine what benefits you deserve. Unless you take that hearing, you may never get what you are actually entitled to receive. My second thought is what does it matter what is fair? Congress laid out this Disability Evaluation System and whether it is fair or not, it is the law. You should try to get the maximum benefits you are entitled to receive.

Have you been sent to MEB? More facts are needed to to gauge what is a likely outcome at the PEB. But from what you describe, 30% and medical disability retirement are a possible outcome in your case. Due to the accident occurring on a jump, you will also get your award tax free (they call it a 10 a/c finding, for injuries occurring in combat, from an instrumentality of war, or from conditions simulating combat).
 

Jason Perry

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Fight for what you deserve

Broomrider,

I am glad this site is helpful. When I left the Army, I was mad that they were not doing more to get good information to Soldiers. It completely stumps me that they did not do something like this themselves. But, I figured if they won't, I will.

You mentioned the Physical Evaluation Board rating. Was that the informal or the formal PEB? How recent was the EMG? I have had success at the formal (and before getting them to reconsider the findings) with getting the Board to consider and rate nerve damage. The Board doesn't always get everything right, but if you are at informal stage, you may yet have luck getting the nerve damage rated.

If not, I highly recommend you not give up the fight. Make sure you do not concur with the findings. This will at lease keep alive your issues for later review.
 

broomrider97

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Registered Member
Fight For What You Deserve

Jason,

The informal PEB gave him a rating of 10% for "chronic lower back pain". We went to the formal, where they gave an additional 10% because my husband requires the aide of a cane to walk even short distances as he is losing control of his left leg and foot. This is when they gave him the rating for 20% under "muscle spasms resulting in abnormal gait".

I've been talking about my husband on the Veteran's site with you, so as you know from those messages, we have now been referred back to the MTF pending a consult.

The EMG study was conducted 18 August 2006 at the MTF. The following is what was reported on the MEB write -up:
"There is evidence of a chronic left S1 radiculopathy without evidence of ongoing axonal loss, as well as evidence of a left L4-5 chronic radiculpathy. Full needle esam was not complete on the right lower extremity as it will not likely add further significant information for diagnosis. These findings are consistent with patient's reported history and reported MRI findings".

We have not seen the full write-up of the EMG studies themselves, so I don't know if this is truly all that was said.

In the formal PEB write-up they stated:
"EMG did note left S1 radiculopathy (this is not independently ratable-non focal neurological exam)". So I'm assuming they are saying that this item has nothing to do with the condition that brought him before the MEB/PEB?
 

Jason Perry

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Not separately unfitting

Broomrider,

Sorry, I know we have been talking on VBN about this, when I looked at your post here, I was not putting together all the facts from VBN.

You are more or less right, the PEB did say, inferentially, that the radiculopathy does not have anything to do with the back. But the APDA kicked it back because there was a viable question of whether the radiculopathy is separately unfitting. The PEB indicated it was not (although by saying "non-rateable" they used a poor choice of words; they should have said "not separately unfitting" or else explained why it was not ratable). The APDA apparently thought that was debatable.

One suggestion is if your husband is seeing a physical therapist, ensure that they are documenting in their treatment notes the functional things he cannot do due to radiculopathy. That is sometimes the biggest challenge, getting the Army to separate out the condition. For example, if the notes say simply that he has a hard time walking, this sheds no light if this is because of his back or because of the radiculopathy. If you can find some activity or exercise that he cannot do, even if his back was healed completely, and then get that documented, it will help his case greatly.

Usually, the EMG must demonstrate a loss of strength to get the condition rated. Understand that part of the problem is that if back pain keeps him from performing, versus the nerves are not firing correctly, then they won't rate him (because it is not separately unfitting). Strength loss is often what the PEB discusses but I have had success getting a rating where I was able to demonstrate loss of endurance as well.

I would not concur with the PEB's finding under any circumstance unless they ultimately rate him at 30% or higher. I think if they do rate him that high, they will recommend Temporary Disability Retirement List (TDRL) as nerve conditions can often change over time.

I hope this was helpful.
 

Derwin

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can the condition pvd be rated

I was denied beneifits for having pvd which caused a vaine replacement in my right leg.this disease was discoverd while I was on active duty.
 

Jason Perry

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It can be rated if certain conditions are met...

Derwin,

In order to give a full answer, I would need more information.

Remember, in order for any condition to be rated by the military, it needs to prevent you from reasonably performing your duties. Did your Peripheral Vascular Disease keep you from doing any of your duties? If so, what could you not do? Did you have the vein replacement before your PEB or after? If before, did it fix your problems?

If it was unfitting, the next question the PEB would address is whether the condition Existed Prior to Service (EPTS). How many years were you in when they diagnosed the PVD? Did they call it EPTS?

If they did, did they mention service aggravation? Most likely, if they did find EPTS, they probably said the PVD was not service aggravated.

What did the VA say? Did they rate you?
 

Navcustom

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My mind is racing. I hope you can shed some light. I have 3 herniated disk, DDD and a few other things I can not spell. I've been in the Navy 12 years and don't want to end my career. The ortho doctor says surgery is not a great idea for me. He also says I will not screen for sea duty. If I can't go to sea, does that mean I will MEB and look at retirement or separation. Thanks for your help
 

Jason Perry

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Navcustom,

Welcome!

I would want to know more information before giving my thoughts. What is your grade and job? Do your conditions significantly impact your duties? How are your last few evaluations? Is your chain of command supportive?
 

Navcustom

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Jason, thanks for your advice in advance. I'm a Chief (E-7). I am on instructor duty which is also my shore duty. My back effects about 50% of my job. I can still teach in the classroom, but I can not go on live missions with my students. I fly the Navy's hover craft, Needless to say I am out of flight status as well due to the drugs I am taking. My evals have been really good, the last one was an EP. My COC will do whatever they can to help. Just really want to make it to 20years. That was my goal. My family can not afford to be medically separated, which makes it worse. I almost want to say I'm fixed and just lay low as long as I can, but that isn't the right thing to do and I don't want to get anyone hurt. I really just want the pain to go away and finish my 20 years. Is there such thing as permanent shore duty? If I can't go to sea, I'll be a recruiter, I know the Navy always needs recruiters. Again, thank you for your help.

Drew
 

Navcustom

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"Very clearly a member may have a Fit finding for continued naval service from the PEB and yet they may no longer be Fit for Full Duty."

Jason,
I read this on the Navy's Inspector General. You mention in another thread that I may be found fit due to the Navy is "broadening" what they find fit. Is there a decent shot I could still stay in the Navy, if things don't work out and I have to go the PEB/MEB route. Thanks.
 

Jason Perry

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I disagree with the Navy IG's statement, though it is an accurate description of how the Navy processes some cases (what I mean is that if challenged in Federal Court, I think an administrative discharge for disability would be struck down; this is my opinion, but I can't speak to every case). But what you are asking is a different question.

I think with your evaluation (EP) and your seniority, you may have a shot at a fit finding. Since the DoD Directive-Type Memo on Implementing the 2008 NDAA contains directive telling the services to consider ways to keep members on active duty (including transfer to other services), I think you have a better shot at staying on. But, like everything, the facts of your case and the evidence you gather are the major factors. Permanent Limited Duty is also a possibility.
 

Chinook

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I'm new to your forum and don't know where to post this...but, I have a low back injury and my package has just been sent to the MEB. I have already learned so much from reading from these posts. I am an E-7 medic, and I have L-1 thru S-1 "issues"; stenosis, 2 annular tears and 2 bulges. I have radiculopathy down my R leg with loss of strength-had EMG's. I have been on con leave for 3 months now because I can't drive to work, I'm in constant pain and I just couldn't keep up the pace. I was in so much pain all the time. I am so scared about all this. The neurosurgeon says I'm not a candidate for surgery because all lumbar discs are damaged. I'm actually a reservist who's been on active duty for 2 years now. I have a civilian job, but I won't be able to go back to it because it's very physical. My pain has been going on for 14months! Drs in the beginning didn't know what it was and it took months to even get an X-ray. That showed a 1.4 lucent lesion, benign, in my femoral head. They say that has nothing to do with anything, but it freaks me out. Anyway, since I'm a reservist I just don't know if things are different for me or what. I know things go to the MEB in Georgia...???
If you have any advice or can share experiences, I would appreciate it. Thanks.
Chinook
 

RayH

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Welcome Chinook, we are glad to have you. Your questions will get a lot of attention and good responses.
Being boarded as a reservist, you shall not be treated any different. All members go through the same process. If you have 8 years or more of active duty then they cannot find anything EPTS. If you were injured while on AD this shouldn't be an issue.
 

Shamus62

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PEB Forum Veteran
Chinook,
I second the welcome, and agree this place is awesome for information and support. Range of Motion seems to be the most significant factor in determining alot of decisions related to back issues. If you haven't already had one or have one scheduled you should try to get one. I'm a left legger instead of right legger :p, but I can literrally feel your pain. The EMG is a great start, as are any evidence of loss of strength (foot drop, atrophy,etc.),...the more the better.

You're a medic, so I'm sure you have the pain management thing down to a science, but I have to rave about Keperra. Its the one non-narcotic deal I've found that works on the radiating leg stuff. I guess its an anti-seizure med, but in lower doses it helps reduce nerve conductivity and really helps keep the intensity and frequency of the pain I have had in the leg. Anyways, good luck with it all and let us know how things are going!
 

Chinook

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Thank you so much for the welcome. It's exciting and a relief to know others who have been through this. I've seen in writing that the R.O.M. is so important. Funny thing though-I have long arms that almost reach the floor without me bending towards my toes. I did go to Phys therapy and they did the test, but I can bend forward with no problem-I can touch the floor. I always have been able to do that. But isn't that using my hip flexors-not my back. I can't extend and I can't really go side to side-but I see that going forward is going to reduce my percentages. But then, on a bad day, I can't move. This is so crazy! I just found out today that my paperwork hasn't even been sent to the MEB yet. My medical records from my home base weren't sent and they need them to complete the package. So I am still in the waiting game. Thanks for listening. I sure appreciate this forum! Lots of information-and friendly people. :)
 

Navcustom

PEB Forum Regular Member
PEB Forum Veteran
Welcome to the forum. These are a great bunch of people. The drug mentioned in the previous post does work wonders for me as well, Keppera i think. I'm a switch legger, just depends on the minute. I feel you on the bending deal. I too can bend to touch the floor, but can not stretch backwards at all and somedays I can't move either. Have you tried the epidural shots? Those work for me pretty well for about a month as well. Also, you may want to ask about a tens unit. Good luck
 
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