RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX		CASE: PD-2017-02876 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060414

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, medically separated for “low back pain” with a disability rating of 0%.

CI CONTENTION: In addition to the back condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The complete submission is at Exhibit A.

SCOPE OF REVIEW: The panel’s scope of review is defined in DoDI 6040.44. It is limited to review of disability ratings assigned 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 MEB, but determined by the PEB to be not unfitting or non-compensable. Any conditions outside the panel’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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.

RATING COMPARISON:

SERVICE PEB – 20060308	VARD - 20061118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	0%	Failed Back Syndrome	5242	40%	20060608	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Low Back Pain. According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent surgery with microdiscectomy at L5-S1 in July 2005 (9 months before separation). A post-operative MRI demonstrated a “good resection” of the L5/S1 disc with localized degenerative disc disease. Postoperative provider entries in the STR documented an uncomplicated and improving course, but with persistent pain and a gait disturbance. Provider notes documented decreased range of motion (ROM), but there was no probative information with regards to the severity of ROM limitation. There was note of poor effort and guarding with any motion.  There was no STR documentation of incapacitating episodes.

The 22 November 2005 MEB NARSUM examination, 5 months prior to separation, noted improving symptoms but continued inability to work a full day without “extreme” back pain. The physical examination recorded “moderate distress” without tenderness or spasm and normal neurological findings. There was no evidence of abnormal gait or spinal contour. The 11 January 2006 MEB examination (DD Form 2808), 3 months prior to separation, documented a “limping gait,” flexion to 36 degrees (normal 90), and extension of 0 degrees (normal 30).

Formal thoracolumbar ROM measurements by physical therapy (PT) were conducted on 2 February 2006 (2 months before separation). The PT examiner charted a series of three measurements in each plane. For flexion, the final measurement was 34 degrees, but the average was 31 degrees. Combined ROM was 150 degrees. Of note, extension was 30 degrees (in marked contrast with the recent MEB examination). The examiner also noted “increased pain with movement, 8/10 pain level.”

There was a general VA Compensation and Pension (C&P) examination that documented a gait disturbance and use of a cane, but deferred the spine examination to a scheduled orthopedic C&P examination. The latter was not conducted, however, so there was no additional temporally probative evidence for spine rating after separation.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 0%, coded 5243 (intervertebral disc syndrome), citing ROM limited by pain (presumptive application of Army Regulation 635-40, B-29, e). The VA rated the condition 40%, coded 5242 (degenerative arthritis of the spine). The VA rating decision did not reference any new evidence other than that from the STR, and cited thoracolumbar flexion of 31 degrees in support of a 40% rating (see criterion below).

The panel was faced with ambiguity in the VASRD §4.71a spine rating criteria that was critical to its recommendation in this case. The 40% rating includes the criterion of 30 degrees or less of flexion. An average measurement of 31 degrees would not satisfy that criterion. However, Note
(4) of the spine rating formula states, “Round each ROM measurement to the nearest five degrees.” If the note is assigned precedence, the rounded measurement of 30 degrees would meet the 40% threshold. There is no VASRD guidance for assigning the ratable measurement from a series of measurements, raising another area of ambiguity in this case. If the final ROM measurement of 34 degrees after repetitions (as per DeLuca guidance) were assigned in this case, the 40% criterion would not be satisfied regardless.

Panel members deliberated whether the 40% flexion criterion should be conceded in support of its recommendation, or whether the 20% criteria (flexion greater than 30 degrees, but less than 60 degrees) were more applicable. Although conceding the 40% criterion based on the PT evidence alone might be justified by reasonable doubt, there were other mitigating factors considered by the panel. The flexion to 36 degrees recorded on the MEB physical examination corroborated the final 34 degree measurement by the PT examiner (not meeting the 40% threshold) and was in close proximity to it. There was also evidence for subjective factors (poor effort, voluntary guarding) that detracted from the probative value of the ROM measurements themselves. The latter was corroborated by the fluctuation in measured extension, and by the fact that the severity of ROM limitation was not congruent with the overall clinical acuity (single level disc disease with an uncomplicated and improving post-operative course). Ultimately members agreed that the overall ROM evidence was better aligned with the 20% criteria. There was no VASRD spine criterion in evidence that would support a higher rating, and no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5242.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5242	20%	

PD-2017-02876

AR20190015555, XXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXX

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,

PD-2017-02876