RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03286
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20021016

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “chronic 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 upon a 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 - 20020701	VARD - 20021105	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Surgical Residuals, Lumbar Spine 	5292	20%	20020207	
			Intermittent Paresthesia, Right Leg	8520	10%	20020207	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a 1997 onset of back pain with a football injury.  Degenerative disc disease (L4/5, L5/S1) was diagnosed and the CI underwent surgery (partial laminectomy L4/5) in June 1998.  Symptoms resolved until they spontaneously reoccurred (no injury) in February 2000.  This was associated with right lower extremity (RLE) radicular symptoms; and, repeat surgery (L4/S1 fusion) was performed in April 2001 (18 months prior to separation).  There were no complications, and the back pain and radicular symptoms improved.  There were multiple STR entries confirming normal gait and neurological findings (5/5 strength) with no exceptions.  There were post-operative STR entries noting painful motion and moderately decreased range of motion (ROM), with one documenting flexion to 45 degrees (normal 90) corroborated by another estimating a 50% reduction of ROM.  There were no STR entries documenting more significant ROM limitation and no documentation of incapacitating episodes after surgical recovery.  The improvement after surgery was still insufficient to allow unrestricted duty and the CI was referred for an MEB, which in turn forwarded “status post L4-S1 fusion and L4-5 discectomy and laminectomy” and “chronic back pain” to the PEB.

A VA Compensation and Pension (C&P) examination on 7 February 2002 (~8 months prior to separation) documented pain and RLE paresthesias without elaborating severity or functional limitations.  The physical examination recorded the absence of muscle atrophy, normal reflexes, and normal sensation.  Measured ROM was flexion to 40 degrees, extension to 5 degrees (normal 30), and bilateral flexion to 10 degrees (normal 30), noting “discomfort” with motion.  Of note, the examiner listed alternative normal values suggesting that he may have been referring to lumbar segmental rather than thoracolumbar ROM.
  
The NARSUM examination on 17 April 2002 (6 months prior to separation) documented persistent back pain rated 5/10 with radiation to the right hip and no motor or sensory symptoms; listing functional limitations of lifting (20-30 pounds), load bearing, and persistent running or jumping.  The physical examination recorded “minimal” tenderness and normal neurological findings (motor 5/5, normal reflexes and sensation).  The documented ROM was flexion “approximately” 30 degrees, extension minus 5 degrees, and bilateral flexion to 10 degrees, specifying painful motion.  Of note, the examiner documented possible indicators of unreliable findings (2-3/5 Waddell’s signs).  

A second VA C&P examination was performed on 39 August 2002 (6 weeks prior to separation).  The examiner documented non-specific low back pain and “intermittent feelings of paresthesias in his right leg” without noting subjective weakness or elaborating functional limitations.  The physical examination recorded a normal gait and spinal curvature, the absence of muscle atrophy, normal reflexes, and normal sensation.  Measured ROM was flexion to 40 degrees, extension to 5 degrees, and bilateral flexion to 10 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below. 
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20		
Slight ........................................................................................................................................ 10
           5293 Intervertebral disc syndrome:
...
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10
Postoperative, cured ................................................................................................................. 0
5295 Lumbosacral strain:
...
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
 	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10
The PEB’s 10% rating analogously to code 5295 was supported by the criteria of that code, and criteria for a higher rating under 5295 were not in evidence.  The VA’s 20% rating under code 5292 cited “moderate limitation of motion” premised on the C&P ROM.  The VA conferred an additional 10% rating under code 8520 (sciatic) for “mild” nerve impairment referencing the intermittent RLE paresthesias from the C&P examination.  Although the PEB’s 10% rating was compliant with the chosen code, members agreed that, given the ROM evidence and with deference to VASRD §4.7 (higher of two evaluations), code 5292 was more favorable; and, further agreed that over a 50% reduction in ROM was fairly characterized as moderate limitation.  Considering the 30-degree flexion in the NARSUM, the higher 40% rating for severe limitation was considered.  Members agreed, however, that the VA ROM evidence was more probative.  The second C&P examination was more proximate to separation and was corroborated by the first one; and, the NARSUM indicated that ROM may have been approximated and raised the possibility of unreliable findings.  There was no evidence for “recurring attacks” to achieve a higher rating under code 5293 (notwithstanding that a diagnosis of intervertebral disc syndrome was dubiously justified).  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition under code 5292.

The Board also considered if additional service rating was justified for peripheral nerve impairment due to radiculopathy.  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.  Since there was no documented sensory impairment or motor weakness that would have impacted military occupation-specific activities, members concluded that additional service disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5292, 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	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5292	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160014200 (PD201403286)

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