RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01517
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020626

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

CI CONTENTION:  The CI requests a higher percentage for his low back condition.  Additionally, he contends sleep apnea, a condition not identified by the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).  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 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 - 20020222	VARD – 20020703	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5295	0%	Lumbosacral Strain	5295	10%	20020220	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began prior to entering the military and was exacerbated in service around November 1997 while in advanced individual training.  Radiographic studies showed degenerative disk disease at L5-S1.  The CI was not a surgical candidate.  
  
At the 25 June 2001 MEB examination (recorded on DD Forms 2807-1 and 2808) dated 12 months prior to separation, the CI reported chronic thoracic and lumbar back pain with spasms that affected his sleep.  Physical examination showed minimal tenderness of the lower thoracic spine, normal muscle strength and full range of motion (ROM).

The 17 October 2001 physical therapy (PT) ROM for the MEB, obtained 8 months prior to separation, showed lumbar flexion to 75 degrees (normal 60), and extension to 10 degrees (normal 30).

The 31 October 2001 MEB NARSUM examination, 8 months prior to separation, noted the complaint, “I have constant pain in the center of my back.”  His pain was rated at an intensity of 3/10 and was exacerbated with lifting, bending, stooping, and especially rotating his trunk at the waist.  Physical examination deferred to the MEB examination that showed minimal tenderness over the lower thoracic spine, and full ROM without pain.  The CI had normal motor and sensory function.  A 15 January 2002 addendum to the MEB NARSUM, 5 months prior to separation, noted no change in his complaint or condition since the 31 October 2001 NARSUM examination.

At the 20 March 2002 VA Compensation and Pension (C&P) evaluation, 3 months before separation, the CI reported constant low back pain accompanied by weakness, fatigue, and a lack of endurance.  He stated his pain radiated to his upper legs at times but he had no numbness or tingling sensation at the buttocks or lower legs.  He was not taking any medications.  Physical examination showed the lumbar spine with mild weakness and painful motion and tenderness to both the spine and paraspinal muscles.  Lumbar ROM flexion was recorded to 95 degrees and extension was 30 degrees.  The examiner noted there was pain during ROM; however, weakened movement, excess fatigability, lack of endurance or incoordination were absent.  Spasm was not recorded.

The panel directed attention to its rating recommendation based on the above evidence and the 2002 VASRD in effect at the time of separation.  The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  The PEB rated the back condition 0%, coded 5299-5295 (analogous to lumbosacral strain), citing full ROM without pain.  A 0% rating under the 5295 code represents slight subjective symptoms only, while a 10% rating is for “characteristic pain on motion.”  The VA rated the lumbosacral strain condition 10%, coded 5295, based on the C&P examination 3 months before separation, citing painful motion.  

The panel considered the C&P examination 3 months prior to separation, and the NARSUM that documented the physical examination 8 months prior to separation.  The NARSUM recorded that the CI had full ROM without pain.  The PT ROM for the MEB obtained 6 months prior to separation did not address the presence or absence of painful motion.  The C&P examination documented painful motion, and stated “pain has major function impact.”  This statement is consistent with the NARSUM examiner’s statement that the CI was unable to perform the lifting required of his military specialty due to significant pain when lifting.  The panel agreed that a 10% rating, but no higher, was justified based on the evidence.   No higher rating was applicable under any code (5292 or 5393) since ROMs documented in the NARSUM and C&P examinations were not compensable; and although the CI reported radiating pain at the C&P examination, clinical evidence of weakness and loss of neurological functioning were absent.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic back pain condition, coded 5299-5295.

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5295 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The panel recommends 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 Back Pain	5299-5295	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009364, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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