RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02565
BRANCH OF SERVICE:  Army	Separation Date:  20060201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Signal Support Systems Specialist, medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  “My disability exam did not reflect the true severity of my disability.”  The applicant’s complete submission is at Exhibit A.  

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:  

USAPDA Admin Correction - 20051209	VARD - 20070227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5299-5242	0%	Residuals, Status Post (S/P) L4-5 Micro-discectomy	5243	40%	20070108	
RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Back Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary, the CI underwent back surgery (microdiskectomy) in December 2004 for a left-sided L4-5 herniated nucleus pulposus (HNP; herniated disc).  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  The MEB Specialty Care Consult exam on 22 August 2005, approximately 6 months prior to separation, noted complaints of back pain with tingling into the left leg rated at 7/10 that increased to 10/10.  The CI had difficulty with prolonged walking, cutting the grass and lifting more than 30 pounds.  He reported that bending at the hips, he could get his hands down to the level midway between his knees and feet with excruciating pain.  The physical exam findings revealed forward “flexion to 54 degrees with beginning pain but he can get down to 82 degrees with severe pain.”  Results are summarized in the chart below.  

At the MEB examination recorded on DD Form 2808 dated 23 September 2005, approximately 4 months prior to separation, there were physical exam findings of pain with motion and positive straight leg raising (SLR; for radiating symptoms) left greater than right.  There were normal reflexes, normal strength, no spasm, and no non-physiologic (Waddell) signs.  The physical therapist performed range-of-motion (ROM) evaluations for the MEB on 11 October 2005 approximately 4 months prior to separation.  The physical exam findings are summarized in the chart below.  Radiographic studies showed postoperative changes including epidural scar tissue, a very small portion of the disk osteophyte touching the thecal sac (significantly improved from preoperative exam), and possible increased degenerative disc disease.  Post-surgical epidural scarring was noted. 

At the MEB examination dated 13 October 2005, approximately 4 months prior to separation, the CI reported chronic back pain with intermittent left leg radiculopathy rated at 7/10.  The physical exam findings are summarized in the chart below.  At the VA clinical treatment examination on 16 May 2006, performed approximately 4 months after separation, the CI reported a constant and nagging back pain with radiation into his left buttocks.  Pain was 9/10 and the CI denied any numbness in his legs, feet, or toes.  The physical exam showed tenderness in the spinous process, and normal reflexes.  The examiner stated “able to bend 45 degrees before complaining of low back pain” and denied pain when bending 15 degrees to the right or 15 degrees to the left.  Medication included narcotic pain medications, anti-inflammatory medication and muscle relaxants.  

At the VA Compensation and Pension (C&P) exam dated 8 January 2007, approximately 11 months after separation, the CI reported chronic back pain with radiation into his left buttocks precipitated by standing or walking for greater than an hour.  The physical exam findings are summarized in the chart below.  The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Specialty Consult ~6 Mos. Pre-Sep	PT ~4 Mos. Pre-Sep	MEB ~4 Mos. Pre-Sep	VA Clinic ~4 Mos. Post Sep	VA C&P ~11 Mos. Post-Sep	
Flexion (90 Normal)	80	75	80	45*	30	
Combined (240)	180	190	180	UNK	180	
Comment:  Surgery ~ 13 Mos. Pre-Sep	Painful motion (see text); reflexes nml; decreased sensation over left foot medially and laterally; +SLR		ROM with painful motion; reflexes nml; “satisfactory strength, sensation, reflexes”	*Before onset of pain; 15 degree lateral bending; silent on extension and rotations; tender; reflexes nml (see text)	Severe pain; DeLuca neg for worsening pain; able to ambulate on heels and toes; strength nml; reflexes nml	
§4.71a Rating	10%	10%	10% (Service 0%)	NR or 20%	VA 40%	

The Board directed attention to its rating recommendation based on the above evidence.  The US Army Physical Disability Agency administrative correction assigned a 0% rating under an analogous code 5299-5242 code (degenerative arthritis of the spine), citing “ROM limited by pain.”  The VA assigned a 40% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination approximately 11 months after separation, citing limitation of forward flexion to 30 degrees.  

There is a disparity between examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence.  Although the MEB exam was comprehensive and 4 months prior to separation, it was less than a year following surgery and there was evidence of post-surgical epidural scarring and other changes that could lead to worsening.  The VA clinical exam 4 months after separation would have accounted for any worsening between the MEB exam and the date of separation; however, that exam was less comprehensive and may have reflected ROMs where the CI’s pain began rather than where active motion stopped.  The VA C&P exam 11 months remote from separation was adjudged as likely post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  

The Board consensus was that the VA clinic exam had the highest probative value for rating at separation and that the forward flexion of 45 degrees met the 20% rating criteria of “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The Board also considered application of §4.7 (higher of two evaluations - Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating).  There was no associated fixed radiculopathy for separate peripheral nerve rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  Any numbness or tingling down the legs was episodic and without objective neurologic deficits noted proximate to separation.  There was no motor deficit in evidence.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of 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 majority recommended a disability rating of 20% for the back condition.  

BOARD FINDINGS:  In the matter of the back condition, the Board majority recommends a disability rating of 20%, coded 5299-5242 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:  

UNFITTING CONDITION	VASRD CODE	RATING	
Back Pain	5299-5242	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160007630 (PD201402565)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA