RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00112
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Food Service Operations, medically separated for “chronic low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI’s lumbar spine condition continues to worsen and negatively impact his daily activities.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20071004	VARD - 20071204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…s/p Diskectomy	5299-5243	10%	Lumbar Spine Degenerative Disc Disease s/p Hemilaminotomy and Discectomy	5242	20%	20070702	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Low Back Pain…s/p Diskectomy.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery for an L4-5 laminectomy and discectomy in November 2001 for a herniated disc that occurred when he fell off an obstacle during training.  The surgery went well, but the CI sustained two falls, one in May 2003 and the second in May 2005.  Conservative treatment to include physical therapy and profile modifications provided some relief but did not help his pain overall or the occasional right-sided radicular symptoms above the knee associated with increased activity.
Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.

At the VA Compensation and Pension (C&P) examination in July 2007, performed 5 months before separation, the CI reported back pain.  Physical examination showed normal gait and spinal contour, no paraspinal muscle spasm, normal reflexes, normal strength, and examination maneuvers for radicular signs were negative.  There was painful and limited motion (see chart).

The MEB NARSUM examination on 28 August 2007 (3 months before separation) noted complaints of low back pain with right hip pain to his right hamstring.  His pain flared with fairly light physical activity, but he was able to lift 30 pounds without significantly aggravating his symptoms; however, more weight caused severe pain.  Standing caused problems, but the CI did fairly well with walking.  Physical examination showed mild tenderness to palpation of the bilateral paraspinous muscles, right greater than left. The CI had a normal gait and spinal contour, no paraspinal muscle spasm, normal reflexes, and normal strength.  Examination maneuvers for radicular signs were negative.   he active range of motion (ROM) was noted to be full, with pain at the flexion end range.  A MEB physical therapy dated 20 September 2007 was conducted to obtain MEB ROMs.  A bubble goniometer was used.  There was painful and limited motion and the physical therapist noted the CI had “very significantly reduced lumbar spine motion” (see chart).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5243 code (intervertebral disc syndrome), citing full ROM with tenderness to palpation.  The VA assigned a 20% rating using 5242 code (degenerative arthritis of the spine) based on the VA C&P examination 5 months before separation, citing painful ROM of the thoracolumbar spine of 80 degrees with pain beginning at 60 degrees.  In assigning probative value to these conflicting examinations, the Board noted the limitation of thoracolumbar motion recorded by the VA C&P examination only met the threshold for a 10% rating.  The MEB NARSUM examination documented full active ROM which was corroborated by the VA C&P examination.  Regarding the second PT examination, the Board agreed there was no record of recurrent injury or other developments to explain the marked reduction in all ROMs.  Based on the totality of the record, the Board majority determined the second PT examination was an outlier.  The Board majority agreed that the VA and MEB NARSUM examinations were more consistent with STR and more reflective of the anticipated severity based on the totality of the CI’s clinical pathology.  The Board majority agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and the combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the VA examination.  There was no documentation of incapacitating episodes, which would provide for a higher rating under code 5243.

The Board then considered whether an additional service rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  After due deliberation, and in consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back pain status post diskectomy condition.  The single voter for dissent recommended modification and submitted the appended minority opinion.

BOARD FINDINGS:  In the matter of the lumbar spine or low back pain status post diskectomy condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  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 20131223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion 							            CASE:  PD-2014-00112

The CI’s condition should be rated 20% since the VASRD General Rating Formula for Diseases and Injuries of the Spine is based on timely and accurate measurements of the motion of the spine.  To completely discount or even to minimize the physical therapy examination from a probative value standpoint is inconsistent with VASRD guidelines even though a goniometer was used.  To be more specific VASRD §4.46 (Accurate measurement) states “Accurate measurement of the length of stumps, excursion of joints, dimensions and location of scars with respect to landmarks, should be insisted on.  The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs.”  Notice that the VASRD does not say that use of other measuring devices are not to be used or having been used, their value is to be deprecated.  The VASRD indicates that the goniometer is essential, extremely important, or necessary.  However, even if the definition of indispensable of absolutely necessary is used, the VA still did not direct its use with the imperative that a “goniometer shall be used.”  More importantly, however, the physical therapist, who did the measurements noted that the CI had a “very significantly reduced lumbar spine motion.”  So, in essence the PT examination was both accurate in the measurements category and in the area of commentary based on direct observation that the CI’s ROMs were abnormal.  That is in contrast to the lack of any measurements at the NARSUM examination, which indicated “Full AROM” thereby precluding an accurate rating IAW with VASRD §4.46.  Furthermore, the PT examination was more proximate to separation than either the NARSUM examination or the VA examination.  Therefore, the PT examination warrants a probative value equal to or greater than prior examinations and IAW VASRD §4.3 (resolution of reasonable doubt), which states “It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant,” a 20% rating is not only reasonable, warranted, and recommended.

RECOMMENDATION:  In the matter of the lumbar spine or low back pain status post diskectomy condition, the Board minority recommends a disability rating of 20%, coded 5299-5243 IAW VASRD §4.71a.  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain Status Post Diskectomy	5299-5243	20%	
COMBINED	20%	

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 XXXXXXXXXXXXXXXXXX, AR20160007251 (PD201400112)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA