RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04236
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Unit Supply Specialist, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  The CI asked the board to 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 -20030430	VARD - 20030707	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Degenerative Disc Disease, L5-Sl, Lumbosacral Spine	5293-5292	20%	20030212	
Neck and Thoracic Pain with Thoracolumbar DDD, Possible Old Scheurmann's Disease, 	Not Unfitting	Thoracic Spine Injury	5299-5291	0%		
		Cervical Spine Injury	5290	20%		
Minimal Cervical DDD with Mild Bulges	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP) Condition.  According to service treatment records the CI’s back condition began in 2002 after being involved in multiple motor vehicle accidents (MVA).  The CI experienced total spinal pain with each accident but the main complaints focused on the low back with radicular symptoms into his legs.  Neurological examination and electro-diagnostic studies were normal.  X-rays revealed minimal degenerative disc disease (DDD) throughout the entire spine.  Despite medication, physical therapy, manipulations, and profiling, the CI’s back pain symptoms intermittently continued.  On 21 April 2003, he was placed on permanent profile and referred for a medical evaluation board (MEB).  

At the MEB narrative summary (NARSUM) examination performed 7 months before separation, the CI’s chief complaint was “LBP” without additional comments.  The examiner noted his back and neck “appeared normal” and he “walks, sits, and stands well.”  There was no evidence of spinal area redness, swelling, atrophy, tenderness, or spasm.  Lumbar range-of-motion (ROM) was decreased and painful without comment on a rotation movement.  Flexion was described as “to within 12 inches of the floor” and lateral bending was described as “to the knees.”  Neurovascular examination was normal.  

At the VA Compensation and Pension (C&P) examination performed 5 months before separation, the CI reported constant thoracolumbar pain associated with stiffness, fatigability, weakness, lack of endurance, and spasms.  He also complained of radicular pain symptoms and altered sensation extending into the legs and toes (right greater than left) and aggravated by prolonged standing or sitting.  Physical examination revealed paraspinal tenderness with guarding and decreased and painful ROM throughout the entire spine.  A functional assessment noted the inability to lift or do physical exercises.  The CI ambulated with a cane in his right hand and demonstrated a right leg limp.  The examiner noted that “he does use a walker for long distances and a cane for short distances, mostly because of his right lower extremity injury.”        

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% analogously coded as 5299-5295 (lumbosacral strain) utilizing 2003 VASRD rating rules and citing characteristic pain on motion.  The VA dual coded the condition as 5293-5292 (intervertebral disc syndrome-limitation of motion) and rated 20% citing “moderate limited motion with pain, without evidence of neurological abnormalities or deformity of a vertebral body from fracture.”  Board members first acknowledged the vast difference and worsened symptoms found at the VA evaluation as compared to the NARSUM performed 2 months earlier.  Absent additional interim history of injury, surgery, or other aggravation of the back condition, the dramatic increase of abnormal physical exam findings at the VA remained inconsistent with the totality of the clinical encounters contained in the treatment records.  While ROM limitations may have progressed over this short time, there was no evidence in the record from which to concur that the severity within the 2-month period approached that portrayed by the VA exam.  The Board thus placed a higher degree of probative value (PV) on the NARSUM examination as it was more consistent with other outpatient encounters and thus more reflective of the anticipated severity suggested by the displayed clinical pathology.  Board members agreed that at 10% rating utilizing code 5295 was justified by the presence of pain upon motion.  Absent spasm as well as the ability to maintain lateral spine motion, the 20% level was not supported.  VASRD-defined incapacitating episodes were not in evidence and thus code 5293 was not applicable.  Lastly, members considered the NARSUM’s description of low back flexion as “to within 12 inches of the floor” and agreed that its correlated degree of motion limitation does not rise to a “moderate” 20% level, but rather is best described as “slight” correlating to at 10% level of impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the neck and thoracic pain with thoracolumbar DDD and minimal cervical DDD with mild bulges were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Neither condition was profiled or implicated in the commander’s statement.   Both conditions were reviewed and considered by the Board.  Members agreed that there was no performance based evidence that any abnormality from a separate thoracic spine condition significantly interfered with satisfactory duty performance and therefore, no additional rating is applicable.  

With regards to the cervical condition, the Board noted that within a year after separation, the treatment record reflected both a 50% decrease in all cervical ROMs as well as bilateral tenderness of the posterior cervical spine.  The NARSUM documented decreased cervical ROM and the VA exam noted paraspinal tenderness with guarding.  Although the radiologic evidence and the diagnosis noted cervical DDD that was described as “minimal” with “mild” bulges, all Board members agreed that the cervical condition did interfere with satisfactory duty performance, and after due deliberation, agreed that the preponderance of the evidence favors its recommendation as an additionally unfitting condition for disability rating.  Based on limited motion coupled with tenderness and guarding, the cervical condition is appropriately coded 5292 and meets the 2003 VASRD criteria in effect at the time of separation for a 10% rating.

BOARD FINDINGS:  In the matter of the low back condition and IAW 2003 VASRD guidelines, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervical spine condition, the Board unanimously agrees that it was separately unfitting and recommends a disability rating of 10%, coded 5292 IAW 2003 VASRD guidelines.  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	
Chronic Low Back Pain	5299-5295	10%	
Cervical DDD 	5292	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141020, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160010224, 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 to 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,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure