The DoD concept of separately unfitting conditions is deceptively simple, even to some unseasoned PEB lawyers. Worse yet, no matter the accuracy of the VA disability calculator used, there are legal and administrative issues atht make mere numerical calculations worthless. This is where the PEB process gets difficult.
Ask any Service member who goes to the field regularly and they’ll tell you either they or someone they know has experienced shooting, burning, needle-like pain shooting down their legs. Does this mean you necessarily suffer from chronic radiculopathy? Not necessarily. These might simply be transient radicular symptoms. What if you also suffer from partial or total numbness in your lower extremities? Again, no, not necessarily. Unless you’ve undergone an invasive procedure during which the doctor noted removing several centimeters of a nerve that could cause these symptoms, radiculopathy is difficult to diagnose with a high degree of certainty.
What if you also slipped a disc in your lower back and have a limited range of motion? Are the two issues separate? Are they somehow linked? Welcome to the initial thought process of every Service member who’s been referred to the Medical Evaluation Board (MEB). Not surprisingly, the Service member’s thoughts are not that different from a new IDES attorney’s upon receiving a lower lumbar or lower extremity radiculopathy case. Every Informal Physical Evaluation Board (IPEB) and Formal Physical Evaluation Board (FPEB) attorney has had their share of lower lumbar cases where radicular symptoms are present.
I’d venture to say likely 90% of the lower lumbar cases I saw at the FPEB showed indications of radiculopathy in one or both lower extremities. As an attorney, the question with which I was most concerned was whether those symptoms rose to the level of rendering a Service member unfit. After all, fitness determinations do not hinge on whether the Service member truly has a formal, or even clear, diagnosis. The true lynchpin in any PEB, formal or informal, is whether the symptoms effectively make it impossible for the Service member to successfully complete their duties; this functional loss analysis is why a VA calculator spitting out 100% ratings is useless with the PEB or DoD context.
Notwithstanding, many clients will focus on the diagnosis, searching through medical records, VA disability questionnaires, etc. It’s easy to lose sight of the fact that functional loss is the key because diagnoses can change based on any number of factors. Case in point: many physicians will give a Chronic Regional Pain Syndrome diagnosis in the initial phase of what eventually turns out to be a case Rheumatoid Arthritis or Compartment Syndrome. When I worked for the Navy’s TDRL Unit, I had multiple cases during which the Service member was temporarily retired due to Chronic Regional Pain Syndrome, reevaluated during TDRL, then issued a finding that would have separated the member with severance pay, despite overwhelming evidence of Rheumatoid Arthritis.
This is not to say having a solid diagnosis is not important in the long term – it most certainly is; however, if military retirement is the Service member’s goal, then the unfitting nature of the condition’s symptoms must be the top priority. Remember, neither temporary nor permanent retirement (TDRL and PDRL, respectively) is an option unless the PEB finds the Service member unfit for one or more conditions amounting to a disability rating of 30%. Thankfully, radiculopathy is more common than Rheumatoid Arthritis or Compartment Syndrome, likely because of all the heavy lifting and lumbar-dependent movements many Service members must do each day; hence, radicular pain and the symptoms therefrom are better appreciated by junior and senior PEB members alike.
That said, Service members should beware of assuming simply because they are found unfit for a lower back condition the PEB should deem the associated radicular pain a separately unfitting condition. The key to any such analysis is whether the two conditions are separate and distinct from one another; put simply, DODI 1332.18 explains each condition – standing alone – must render the Service member unable to perform the duties within their grade, rank, or rating/specialty. Otherwise, the PEB will treat the conditions as one combined condition, rendering the disability percentages non-additive.
What does “non-additive” mean, in the PEB context? Assume the PEB finds a Service member unfit because of a 20% lower lumbar condition. Further assume the Service member has a 10% VA rating for radiculopathy in their right lower extremity due to nerve impingement in the lumbar spine (not nerve damage). It is highly likely even if the Service member petitions the Formal Physical Evaluation Board (FPEB) for the 10% radiculopathy, it will be combined with, not added to, the 20% lower lumbar condition because the nerve impingement has not resulted in nerve damage. Therefore, if the lower lumbar condition were cured, so would the radiculopathy; hence, the conditions are not separate.
If, however, there were nerve damage and the treating neurologist believed the radiculopathy would persist despite the lower lumbar condition’s absence, then the PEB would likely find the two conditions separate. Ironically, all the mental gymnastics to determine whether two conditions are separate doesn’t amount are useless if each condition’s symptoms don’t render the Service member unable to do their job..
At Joel Pettit Law, we understand there is a critical path to navigating not only the Physical Evaluation Board process, but also the legal and factual analysis of each case. Optimizing our analyses enables us to serve our clients more efficiently and effectively, increasing our value proposition. Put simply, we want our clients to look back at their interaction with Joel Pettit Law and think: the juice was definitely worth the squeeze. Please contact us to discuss your case and determine what type of squeezing may be yield more juice.
