RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02433
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Combat Engineer, medically separated for “residual low back pain,” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 based on 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 - 20031211	VARD - 20031222   	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual Low Back Pain	5299-5237	10%	DDD of L-Spine, Post-Operative	5237	20%	20031021	
			Radicular Component, LLE	8520	10%		
			Radicular Component, LLE	8520	10%		
COMBINED RATING:  10%	RATING:  80%	

ANALYSIS SUMMARY:  

Low Back Pain.  The service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a back injury from a fall in November 2000, (6 years after service entry).  Surgery for an L5-S1 herniated nucleus pulposus (HNP) and Grade I spondylolisthesis (slippage) was performed in June 2001.  Recurrent pain led to a second surgery in July 2001.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “low back pain secondary to HNP [after 2 surgeries]” and “spondylolysis and spondylolisthesis” for PEB adjudication.  At a physical therapy visit in November 2002, (17 months prior to separation), the CI reported bilateral leg weakness that was getting worse, and loss of leg control on extension.  The examiner documented flexion to the knees with pain radiating to the right buttock, and “severe” loss of extension.  The CI was admitted for 2 days in December 2002, for an acute episode of incapacitating back pain (“bed ridden”), during which medical treatment was given.  Radiographic imaging (MRI) in February 2003, (14 months prior to separation), documented recurrent disc protrusion and osteophytes (bone spurs) causing pressure on the L5-S1 nerve root.  At a neurosurgical consultation in March 2003, (13 months prior to separation), the examiner documented flexion to 40 degrees (normal 90) with pain, and 0 degrees of extension (normal 30) with evidence of nerve tension bilaterally (positive straight leg raise).  There was normal strength, sensation and reflexes.  At a physical therapy visit in April 2003, (12 months prior to separation), the examiner documented flexion to the mid tibia “80%” (normal toes 100%) which approximates 75-80 degrees of forward flexion (normal 90).  On the MEB DD Forms 2807-1 and 2808, both dated 19 June 2003, (10 months prior to separation), the CI reported pain in lower back radiating to both legs, worse with prolonged sitting and standing, and intermittent numbness and weakness with stair climbing.  The examiner documented a “normal” spine exam.  

The MEB NARSUM exam was performed on 10 July 2003, (9 months prior to separation).  The examiner documented an abnormal stance characterized by 15 degrees of baseline forward flexion.  There was inability to extend from that position.  Flexion was described as “fingertips to 60 cm [from] the floor,” which approximates less than 30 degrees of forward flexion.  There was tenderness at the upper and lower lumbar spine, painful motion with rotation, and difficulty arising from the prone and seated positions.  

At the VA Compensation and Pension (C&P) exam performed on 21 October 2003, (6 months prior to separation), the CI reported daily 4-5/10 lumbar pain, that was aggravated by prolonged sitting and standing.  The examiner documented a forward flexion of 40 degrees with the ability to “reach within 2 feet of the floor.”  There was pain after repetition, with no lumbar tenderness or spasms.  Strength, reflexes and neurologic exams were normal.  Gait was not addressed other than to describe a normal heel, toe and tandem walk.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the “low back pain [status post 2 surgical interventions] with spondylolisthesis and spondylolysis” at 10% analogously coded 5299-5237 (lumbosacral strain), citing the USAPDA pain policy.  The VA rated the “degenerative disc disease of the lumbar spine, postoperative” at 20% similarly coded 5237, citing 40 degrees of flexion based on the pre-separation VA C&P exam in October 2003.  

The Board noted that the MEB NARSUM exam provided values for forward flexion that did not conform to the goniometric thoracolumbar range of motion measurements set forth by the VASRD (§4.71a, Plate V).  The descriptions of the motion as reaching to 60 cm from the floor were sufficiently specific to conclude that the limitation of motion approached a 40% rating.  The Board noted that the VA exam was more proximate to separation, was more detailed and complaint with the VASRD rating guidelines; therefore, the Board placed greater probative value on the VA exam.  The VA exam established a flexion of 40 degrees, in support of a 20% rating.  The Board considered if there was additional functional loss due to pain and weakness with use beyond that reflected in the measured limitation of thoracolumbar spine range of motion after repetitive motion.  Considering VASRD §4.40, §4.45, and §4.59, the Board agreed that there was some additional functional limitation due to painful motion during flare‐ups; however, the evidence did not show additional functional limitations which approximated the criteria for the next higher rating.  Since the CI had intervertebral disc disease causing radicular symptoms consistent with intervertebral disc syndrome, the Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  The evidence showed that the CI was admitted to the hospital for 2 days for treatment of an incapacitating episode in December 2002; however, there was no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in the 12 months prior to separation to warrant consideration of a higher rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the low back condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength and reflexes, and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Residual Low Back Pain 	5237 	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160010933, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records. I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure