RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01476
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Ammunition Specialist, medically separated for “chronic mechanical low back pain” with a disability rating of 10%.

CI CONTENTION:  Current condition supports a higher rating.  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 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 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.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20030404	VARD - 20031007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain	5295	10%	Chronic Low Back Strain	5295	20%	20030915	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Mechanical Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in April to May 2002 while performing ammunition duties.  X-rays showed thoracolumbar scoliosis.  There was no surgical indication.  The MEB NARSUM examination on 24 February 2003, 3 months before separation, noted complaints of chronic-severe back pain with inability to stand or sit for periods over 15 minutes.  The CI also reported she had scoliosis since childhood and was unable to participate in gym class until the 9th grade.  Physical examination showed mild kyphoscoliosis.  The CI was able to toe and heel walk and reflexes were normal.  Diagnostic imaging of the lumbar spine showed mild dextroscoliosis with no disk bulges or herniations.  The range of motion (ROM) was performed by physical therapy on 1 April 2003, 1 month before separation.  Physical examination revealed ROM of flexion with fingertips 51 cm from the floor or approximately 50 degrees of thoracolumbar flexion, extension was 30 degrees, side bending was right 20 degrees and left 12 degrees, rotations was right 45 degrees and left 40 degrees.  The examiner stated “suspect exaggeration of motion limitations” and the assessment was scoliosis and chronic back pain.

At the 15 September 2003 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported back pain with radicular pain without bowel or bladder symptoms.  Physical examination showed normal gait and posture with normal sensory and reflex testing.  Back tenderness was present. The ROM was flexion to 25 degrees, extension to 10 degrees, bilateral side bending to 25 degrees, and bilateral rotations to 30 degrees with painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation which was the 2003 VASRD standards for the spine.  The applicable coding options for this case are excerpted below:

5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40
Moderate ................................................................................................................................. 20
Slight ........................................................................................................................................ 10

5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
in standing position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10

The PEB rated the back condition 10%, coded 5295 (lumbosacral strain), citing mild scoliosis existed prior to service but the condition was permanently service aggravated.  The VA initially rated the back condition 40%, also coded 5295, based on the C&P examination 4 months after separation, citing the scoliosis and chronic low back pain existed prior to service and deducted 20% for a disability rating of 20%.

The panel deliberated the probative value of the disparate MEB and VA ROM examinations in evidence and adjudged that the VA ROM examination documenting “severe” limited motion was an outlier not indicative of the ROMs depicted by the preponderance of STR evidence.  The panel agreed the MEB PT ROMs, most proximate to separation, had the highest probative value documenting “moderate” limitation of lumbar motion most approximate to the STR ROM evidence to support a 20% rating.  There was no STR evidence of severe listing of whole spine, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space to support a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition, coded 5295-5292.

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5295-5292 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Mechanical Low Back Pain 	5295-5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150617, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008515, 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.

Sincerely,	
Enclosure