RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03354
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070918

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Corrections Specialist, medically separated for “back pain analogous to lumbosacral strain” 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 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 - 20070823	VARD - 20091006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5299-5237	10%	Chronic Low Back Pain	5237	10%	STR/VATR	
			Residual Scars, Lower Back …	7801	0%	STR/VATR	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in late 2004 after receiving a shrapnel wound in his lower back, the result of an IED [improvised explosive device] explosion while deployed to Iraq.  Radiographic studies in December 2004 showed metallic fragments on the left side of the lower back, along with associated fracture of some lumbar vertebrae (fragments were also in other parts of his body).  Two surgeries were performed in late 2004 and early 2005 to remove the largest metal fragments, though smaller ones were left in.  The CI experienced low back pain roughly since the time of the two surgeries.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty, so he was referred for an MEB.  

At the time of the NARSUM exam on 8 June 2007 (3 months prior to separation), the CI reported isolated low back pain with no relief from physical therapy.  The pain was constant and characterized as “moderate to marked.”  This pain was exacerbated by prolonged standing or sitting, better with pain medication, but he reported taking no medication at the time.  He reported no radicular symptoms, no numbness or tingling, and no bowel or bladder complaints.  On examination, the lumbar spine demonstrated “full range of motion by goniometer,” yet exact measurements were not recorded.  Tenderness over the mid and lower lumbar spine was reported.  Reflexes, sensation, and strength were all normal, and testing for possible nerve root irritation was negative.  Testing for hip or sacroiliac joint pathology was also negative.  Radiographic tests revealed no “obvious gross abnormality.”  

At the VA Compensation and Pension (C&P) examination on 6 October 2009 (2 years after separation), the CI reported chronic daily low back pain, rated 6-8 on a scale of 1-10 (10 being the worst), which increased with activities or prolonged (greater than 15 minutes) sitting or standing.  He denied radicular symptoms and bowel or bladder problems.  The CI reported that he was again taking pain medication, with some relief.  There had been no incapacitating episodes.  Physical exam showed normal spinal alignment with no tenderness or spasm, and gait was normal.  Symptoms of radiculopathy were not reported.  Dorsolumbar range of motion (ROM) was reported as 70 degrees flexion (90 normal), 20 degrees extension (30 normal), and right and left flexion and rotation at 25 degrees (30 normal).  Repetition did not change these measurements.  These measurements result in 190 degrees combined for VA rating purposes.  Scars were well-healed and non-painful with no muscle atrophy or wasting around the scars (muscle group 20).  Radiographs showed retained metallic particles and spondylolysis without spondylolisthesis (bone abnormality or fracture without misalignment).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5299-5237 (analogous to lumbosacral strain), citing “chronic muscular back pain causing lack of stamina,” full motion and localized tenderness.  The VA also assigned a 10% rating, using code 5237 based on the VA C&P examination 2 years after separation, citing limitation of ROM with no painful motion.  The VA C&P exam was considered too remote from the date of separation to be probative for rating the condition at the time of separation.  Although there was insufficient limitation of motion from the NARSUM exam to support a minimum rating (reporting full ROM) under the general spine formula, the Board agreed that a 10% spine rating was justified for the presence of tenderness as reported at that exam.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no additional limitation or disability from shrapnel scars for any finding of unfitting scars for additional disability rating.  

However, the Board considered alternative rating under muscle coding IAW VASRD §4.56 (evaluation of muscle disabilities) due to shrapnel wounds to muscle group XX (code 5320).  The CI’s increased pain with prolonged standing or sitting was adjudged as fatigue-pain which is a cardinal sign and symptom of muscle disability, and aligned with the PEB disability description of “lack of stamina.”  The CI underwent two surgeries for shrapnel debridement and had retained metallic particles by radiograph which supported a “moderate” (20%) muscle injury at the time of separation.  There was no evidence of prolonged infection, or sloughing of soft parts, or intermuscular scarring to support a “moderately severe” (40%) or higher muscle rating.  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 pain condition.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5237-5320 IAW VASRD §4.73.  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	
Back Pain	5237-5320	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140703, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160007992, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,