RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00098
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Chaplain Assistant, medically separated for “chronic back pain,” with a disability rating of 0%.

CI CONTENTION:  The CI asked 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 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 - 20070208	VARD - 20090302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Neurologic Abnormality	5299-5237	0%	Degenerative Disk Disease, Lumbar Spine	5243	20%	20090108	
			Radiculopathy Left Lower Extremity 	8520	10%	20090108	
Gastroesophageal Reflux 	Not Unfitting	No VA Placement	
Seasonal Allergies	Not Unfitting	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an atraumatic onset of back pain in 2003.  By X-ray he was diagnosed with degenerative disc disease (“mild L5-S1”).  There was no STR evidence for radiculopathy.  Pain radiation, sensory symptoms and subjective weakness were specifically denied in several STR notes, and multiple neurological examinations were normal.  There was no STR documentation of incapacitating episodes.  There were several STR entries throughout the clinical course which documented grossly normal range of motion (ROM); with the only evidence to the contrary being a civilian physical therapy (PT) evaluation which noted flexion “25%” without clarifying whether that was estimated flexion or estimated reduction in flexion.  A detailed family practice entry in October 2006 documented the absence of spasm, a normal gait and contour, and grossly normal ROM with painful motion.  There was contemporary documentation on an X-ray request of “MVA [motor vehicular accident] last week...now with increased pain.”  Formal ROM measurements for the MEB were conducted by PT in November 2006 (3 weeks later).  The PT examiner rated the pain at 8/10 without mention of the recent MVA.  The measured ROM was severely pain-limited:  flexion to 20 degrees (normal 90) and combined ROM of 150 degrees (normal 240).  There were no follow-up measurements in evidence.  

The NARSUM examination that same month (5 months prior to separation) also did not mention the recent injury, and conversely stated that the CI “admits that over the past 2.5 years his back pain has remained unchanged...[but]...is becoming increasingly frustrating....”  The examiner documented “daily [pain], waxes and wanes...exacerbated by prolonged standing or sitting” without mention of radicular symptoms.  The physical examination recorded “normal curve and contour with no muscle spasm or focal tenderness appreciated” and normal neurological findings (5/5 strength).  Of note, the examiner documented indicators of possibly unreliable findings, e.g., “Waddell 3/5:  pain with axial loading, pain with simulated rotation and no pain with seated straight leg raise.”  The NARSUM listed the ROM measurements from the above PT evaluation.  The NARSUM diagnosis of “uncomplicated low back pain (slight/intermittent) secondary to mild L5-S1 degenerative disk disease” was forwarded to the PEB.

At VA orthopedic Compensation and Pension (C&P) evaluation was not conducted until January 2009, 21 months after separation.  The probative value was thus limited as elaborated in the Board’s scope of review.  The examiner noted constant pain rated 6-9/10 interfering with bending, stooping, and lifting.  The CI reported radiation down the left lower extremity (LLE), but denied any motor or sensory symptoms.  The physical examination recorded a normal gait, “slight” spasm, and normal neurological findings (motor, sensory and reflexes).  The VA ROM measurements were flexion to 45 degrees with a combined ROM of 170 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated 0% under code 5299-5237 (analogous to lumbosacral strain), citing range of motion limited by pain, with likely application of Army Regulation (AR) 635-40 (B-29, e).  The VA, based on the evidence from the 2009 C&P examination, provided a 20% rating (C&P flexion) under code 5243 (intervertebral disc syndrome) and a 10% rating under 8520 (sciatic nerve) for the LLE radiculopathy; although, members noted that radiating pain without other symptoms or findings (as per the C&P examiner) is subsumed under the §4.71a spine rating formula.  

The MEB PT flexion of 20 degrees supports the §4.71a criterion for a 40% rating, and this was the only formal ROM evidence from the STR file; but, a prominent issue in this case was the fact that the PT ROM evidence suffered significantly in probative value; for which there were multiple detractors.  Most significantly, the measurements were performed during a period of exacerbation by the recent MVA; and, it appeared likely that neither the PT nor NARSUM examiners were aware of that circumstance.  Logically the ROM evaluation for rating would have been re-scheduled or repeated by the MEB if this had been taken into account.  That issue was magnified by the stark contrast between the PT measurements and almost all other ROM evidence over a protracted and stable course (including that quite proximate to the PT examination).  The NARSUM affirmed the CI’s own report that acuity was unchanged over a period encompassing numerous observations of normal ROM.  Other probative value issues were the incongruence of such severe ROM limitation with the absence of spasm or disturbance of gait or spinal contour (documented in the NARSUM and by a contemporary STR examiner), and the possibility of unreliable findings noted in the NARSUM.  Finally, the baseline ROM evidence from the STR was much better clinically aligned with the established pathology (uncomplicated and mild DDD).  Members ultimately agreed that the PT ROM evidence was not sufficiently probative to sustain a Board recommendation for a 40% rating; and, that the Board’s recommendation more reasonably premised on the preponderance of ROM evidence.  Members further agreed that VASRD §4.59 (painful motion) and/or §4.40 (functional loss) was reasonably conceded in support of the minimum compensable 10% rating, but that no higher rating based on ROM limitation could be supported.  There was no evidence for abnormal gait or contour to support a 20% rating, no STR evidence for additionally ratable peripheral nerve impairment, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the lumbar spine condition, preferring code 5242 (degenerative arthritis of the spine).

Contended PEB Conditions:  Gastroesophageal Reflux Disease, Seasonal Allergies.  The Board’s main charge was to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of them significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended gastroesophageal reflux and seasonal allergy conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	5242	10%	
Gastroesophageal Reflux Disease	Not Unfitting	
Seasonal Allergies	Not Unfitting	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140425, 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, AR20160018853 (PD201500098)

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 10% 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