RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01542
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Ground Surveillance Systems Operator, medically separated for “chronic non-radiating low back pain,” with a disability rating of 10%.

CI CONTENTION:  “I believe the Army PEB made an error, and awarded me a lower % of disability than I am entitled to.  12 years after the initial accident in Iraq I am still in constant pain and struggle daily with limited range of motion.”  The CI’s 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 - 20050421	VARD - 20051102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Low Back Pain	5237	10%	Lumbar Strain with Radiculopathy	5237	20%	20050613	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Non-Radiating Low Back Pain. According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in October 2003 while deployed after he was involved in two Humvee incidents while standing when the vehicle abruptly slowed and stopped.  As a result he lost his balance and was thrown onto the vehicle turret, thereby impacting his back.  Treatment consisted of a nonsteroidal anti-inflammatory drug (NSAID), Flexeril (cyclobenzaprine, a muscle relaxer), and Percocet (oxycodone, a narcotic, and acetaminophen, a pain reliever).  In December 2003 while on leave, he had X-rays of the lumbar spine and magnetic resonance imaging (MRI) of his back.  Both showed an essentially normal back with no significant abnormalities. He resumed and completed his tour of duty.  Upon redeployment, he began a course of conservative therapy for his back which included chiropractic treatment, physical therapy, and Elavil (amitriptyline for nerve pain).  On 3 December 2004 he had a full range of motion (ROM).  His condition failed to improve and a subsequent MRI in January 2005 demonstrated moderate bilateral facet arthropathy at the L4-L5 vertebrae, but no evidence of stenosis or a herniated disc.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “chronic lower back pain” for PEB adjudication.

The 9 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808) and the 7 April 2005 MEB NARSUM examination  were conducted by the same examiner.  In the interim between the MEB examination and NARSUM examination an MEB orthopedic consultation was performed on 31 March 2005, 1 month prior to separation, at which time the CI complained of increased lower back pain with standing or sitting greater than 20 minutes.  Activities such as running, climbing off and on vehicles, jumping or lifting greater than 20 pounds exacerbated the pain.  The pain interfered with the CI’s sleep.  Physical examination showed a supple range of motion (ROM) and the CI was easily able to touch his toes with measurements noted in the chart.  Neurologic testing was normal.  At the MEB and the NARSUM examinations the CI reiterated constant back pain which caused him to lose sleep.  Pain was described as “dull” in the center of the back, with no radiation to the legs.  Average pain level was 4½-5/10 (10 being the worst pain).  Back pain was aggravated by bending activities and upon arising in the morning.  Sitting exacerbated the pain the most, while lying flat on a hard surface alleviated the pain.  Physical examination showed tenderness along the lower spine with no spasm and no radicular symptoms.  Straight leg raising (to determine nerve root irritation) was negative.  ROM measurements are in the chart.  Neurologic examination was unremarkable.   

At the 13 June 2005 VA Compensation and Pension (C&P) general medical evaluation, performed 1 month after separation, the CI reported constant low back pain which travelled into his muscles.  Pain was described as aching, sharp and cramping with pain level at 7/10.   Pain was exacerbated by activity, but did not cause incapacitation.  The pain was relieved with medication and lying flat on a hard surface.  The condition did not result in any time lost from work.  Physical examination showed the CI’s posture and gait to be within normal limits.  There was radiating pain into the low thoracic and lumbar areas with positive straight leg raising bilaterally.  Neurologic testing was essentially normal.  ROM measurements and other pertinent findings are recorded in the chart below.  Repetitive motion testing limited spine function due to pain, fatigue, weakness, and lack of endurance.  However, the examiner noted that he was unable to determine without resorting to mere speculation whether any of the factors resulted in additional limitation of spine ROM.  There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  X-rays of the lumbar spine were negative.

The range of motion (ROM) examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	Ortho ~1 Mos. Pre-Sep
	MEB ~1 Mos. Pre-Sep
	VA ~1 Mos. Post-Sep
	
Flexion (90 Normal)	90	(70)70, 72, 72	60	
Extension (30)	20	(30)28, 28, 30 	30	
R Lat Flex (30)	30	(30)28, 28, 28 	25	
L Lat Flex (30)	30	 (25 or 20)22, 22, 23 	20	
R Rotation (30)	Not addressed	(25)24, 25, 25 	15	
L Rotation (30)	Not addressed	(30)30, 30, 30 	15	
Combined (240)	At least 170	210 or 205	165	
Comments	Normal neurologic exam; no painful motion documented; slight limitation of motion	Normal strength, reflexes, sensation; tenderness; loss of motion; no painful motion documented	Radiating pain on motion; tenderness; loss of motion	
§4.71a Rating	10%	10%	20%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing full motion, paraspinal tenderness and no clinical signs of radiculopathy.  The VA rated the low back condition 20%, coded 5237, based on the C&P examination 1 month after separation, citing flexion of 60 degrees.  
  
Panel members discussed the relative merits of a 10% rating, which required a limitation of motion (greater than 60 degrees but not greater than 85 degrees) or a combined ROM (greater than 120 degrees but not greater than 235 degrees) versus a 20% rating (greater than 30 degrees but not greater than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour).  A 10% rating was supported by the MEB examination where flexion was 70 degrees for rating purposes; however, there was no muscle spasm or guarding. However, a majority of panel members considered the VA examination finding of 60 degrees forward flexion to be not unreasonable since the MEB examination was 20 degrees of forward flexion less than the prior orthopedic examination where flexion was 90 degrees.  Therefore, a 10 degree decrement to 60 degrees over 2 months in the absence of therapy could justify the decrement in the ROM without an injury or accident having occurred.  Furthermore, an MRI in January 2005 demonstrated moderate bilateral facet arthropathy at the L4-L5 vertebrae, which represented a change from the normal December 2003 MRI.  Lastly, the VA examination was more precise and noted the degrees at which painful motion began and the examination was compliant with DeLuca guidelines.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the chronic non-radiating low back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic non-radiating low back pain condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change and elected not to submit a minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Non-Radiating Low Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150622, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008820, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed).  
I regret to inform you that I reject the Board’s recommendation and your application to the DoD PDBR is denied.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations. 

	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. 

Sincerely,
						     
Enclosure