RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04281
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20021004

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Heavy Construction Equipment Operator, medically separated for “chronic low back pain [LBP],” with a disability rating of 10%.

CI CONTENTION:  The CI contends for a higher rating for his unfitting back condition.  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 - 20020904	VARD - 20040203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Degenerative Disc Disease, Lumbar Spine 	5243	20%	20031119	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:    

Chronic Low Back Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of back pain with a strain injury in April 2000.  The pain persisted with intermittent bilateral lower extremity (BLE) radiation.  Imaging (MRI) identified degenerative disc disease (L3-S1, bulging L4/5 and L5/S1, no nerve root displacement).  Surgical intervention (intradiscal electrothermy [IDET]) ensued in February 2002 (8 months before separation).  The outpatient STR entries, before and after the IDET procedure, documented consistently normal neurological examinations (5/5 BLE strength); and, range of motion (ROM) observations ranged from grossly normal to non-specifically decreased flexion and extension, with one physical therapy (PT) entry recording 25% reduction in flexion and extension but normal lateral excursion.  Some entries noted spasm and gait disturbance (others with normal gait), but none indicated there was severe ROM limitation.  The surgical results were insufficient to allow unrestricted duty and additional surgery was not recommended.  The CI was referred for an MEB, which in turn forwarded “low back pain, status-post IDET” to the PEB.

The NARSUM examination on 14 August 2002 (6 weeks before separation) was supplemented by a neurosurgical addendum (24 June, 7 weeks earlier); and, documented recurrent pain after temporary abatement with the IDET (“no overall improvement” per NARSUM).  The pain was rated “continuous, moderate” by the neurosurgeon, and the NARSUM added “shooting down the legs with certain movements.”  There was no note of subjective weakness or sensory symptoms, and functional limitations were prolonged standing or sitting and “strenuous activities.”  The NARSUM documented “he is sent home on quarters for about 6 days a month,” but significantly less than that was reflected by STR provider entries, and the commander’s performance statement did not reference any work loss.  The physical examination (distilled from the NARSUM and addendum) recorded an antalgic gait, “some” spasm, the absence of radicular pain with provocation, and normal neurological findings (5/5 strength, sensory intact, reflexes symmetric).  Recorded ROM measurements from PT (2 weeks before the NARSUM) were flexion to 20 degrees (normal 90) and combined ROM of 140 degrees (normal 240), with no clarification regarding effort or pain in determining the end points.

A VA Compensation and Pension (C&P) examination on 19 November 2003 (13 months after separation) documented “daily” pain rated 4-5/10 associated with left lower extremity (LLE) radicular symptoms (L5 dermatomal sensory and weak dorsiflexion of great toe [left L5/S1]).  The examiner noted that the CI was able to tolerate an 8-hour work day on his feet “without any difficulty,” but was unable to run.  The physical examination recorded a normal gait, tenderness, spasm, and positive LLE neurological findings: L5 dermatome fine touch deficit, 4/5 ankle flexion and extension, and “loss of function of his great toe.”  The measured ROM was flexion to 40 degrees and combined 110 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, in effect at the time of the PEB, differed significantly from the current §4.71a general rating formula for the spine.  The latter were in effect by the time of the VA decision, and the VA’s 20% rating was consistent with the C&P ROM evidence and the VASRD in effect.  The older VASRD standards in effect at separation; however, must be applied to the Board’s recommendation IAW DoDI 6040.44.  The PEB’s rating was analogous to the older code 5295 (lumbosacral strain) and cited the “characteristic pain on motion” criterion for a 10% rating.  The higher ratings under 5295 required loss of lateral motion, listing, and other findings not supported by the evidence.  The 2 remaining 2002 codes applicable for consideration in this case were 5292 (limitation of motion) conferring ratings of 20% for “moderate” and 40% for “severe” limitation; and, code 5293 (intervertebral disc syndrome) conferring a 20% rating for “moderate; recurring attacks” and 40% for “severe; recurring attacks, with intermittent relief” (the only higher rating of 60% required neurological findings not in evidence).  

The PT ROM evidence compelled consideration of a higher rating under 5292, since the ROM limitation reflected by the PT measurements, with a 75% reduction in flexion, could reasonably be characterized as “severe.”  Members agreed; however, the PT ROM evidence alone was insufficiently probative to sustain a 40% recommendation.  It was too disparate from numerous ROM assessments in the STR, and not corroborated by any of them; it was inconsistent with the post-separation VA ROM measurements which, judging by neurological symptoms and findings, were obtained after progression of the disc disease; and, the severe ROM limitation from the PT evidence was not of the degree expected of the confirmed diagnosis.  Although a 40% recommendation based on ROM limitation could not be supported, members agreed that the totality of evidence justified characterization as “moderate” limitation in support of a 20% recommendation.  A 40% rating under 5293 for “severe” IVDS was also considered, based primarily on the NARSUM entry for the frequent assignments to quarters, but members agreed this was not justified because the evidence was insufficiently probative.  Additionally the overall clinical acuity was not reasonably characterized as severe and the requisite diagnosis of IVDS was not well supported by the symptoms and findings.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar disc disease under code 5292.

BOARD FINDINGS:  In the matter of the lumbar disc 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%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141115, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

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 XXXXXXXXXXXXXXXXXXXXX, AR20160018334 (PD201404281)

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