RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01758
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20021119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Military Police, medically separated for “chronic low back pain,” with a disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  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 progression or complications of service-connected conditions after separation.  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 - 20021023	VARD - 20030313	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5293-5299-5295	20%	Degenerative Disc Disease, L5-S1	5293-5292	20%	STR	
			Degenerative Disc Disease, L5-S1 with Radiculopathy into Right Lower Extremity 	5293-8526	10%		
Cervical Spondylosis	Not Unfitting	Cervical Spine Spondylosis	5010-5293	0%		
Shoulder Impingement						
Knee Pain 		Right Iliotibial Band Syndrome, Right Knee	5260	NSC		
		Left Iliotibial Band Syndrome, Left Knee	5260	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in February 1994 after participating in ruck marches.  Magnetic resonance imaging (MRI) demonstrated degenerative disc disease (DDD) with herniation at L5/S1 and nerve root impingement.  This eventually resulted in surgery (micro discectomy and laminectomy) in August 1999.  The condition improved and was stable until a strain injury in January 2002 (10 months before separation).  There was persistent pain with right lower extremity (RLE) radiation.  A repeat MRI demonstrated recurrent DDD at L5/S1, but no neural impingement.  There was one STR clinical entry that noted RLE paresthesias, but multiple entries documented intermittent pain radiation only without motor or sensory complaints.   There were multiple STR clinical entries that documented normal neurological findings (5/5 strength, sensory intact), although one civilian orthopedist recorded an RLE distal L5/S1 motor weakness.  Additional surgery was not recommended.  There were STR entries that documented non-specifically decreased range of motion (ROM), with one shortly after the strain injury (see above) that characterized the ROM limitation as “marked;” but, there were no entries that suggested more than moderate ROM limitation after that.  There were no STR entries that documented abnormalities of gait or posture and none that documented incapacitating flares of back pain (excluding convalescent leave after the surgery).  

A 10 April 2002 orthopedic addendum to the NARSUM, 7 months prior to separation, documented “increasing” lower back pain with RLE radiation (no mention of subjective weakness or sensory complaints) and referenced only profile restrictions as functional limitations.  Physical examination recorded an antalgic gait (not corroborated elsewhere in the STR), tenderness (no mention of spasm), and normal neurological findings (5/5 strength in all groups, intact sensation).  ROM measurements showed a normal forward flexion of 90 degrees, bilateral flexion of 20 degrees (normal 30), and bilateral rotation of 30 degrees (normal); specifying painful motion.

The 18 July 2002 NARSUM examination, 4 months prior to separation, documented nonspecific back pain with RLE radiation only during flares (no mention of motor or sensory symptoms) that was “aggravated by repeated bending, heavy lifting, running, jumping, or walking more than 20 minutes.”  Physical examination recorded tenderness, spasm, and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  ROM measurements showed a flexion of 75 degrees with a combined ROM of 210 degrees (normal 240), “limited by pain.”  There was no VA Compensation and Pension examination in evidence proximate to separation. 

The panel directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differed significantly from the current §4.71a general rating formula for the spine.  The PEB’s 20% rating under code 5293-5299-5295 (analogous to intervertebral disc syndrome and lumbosacral strain) cited “recurrent [disc] symptoms ... spasm ... some loss of lateral bending, no radiculopathy.”  It was not clear to the panel whether the PEB conceded the 20% criteria of code 5295, “with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position;” and/or the 20% criteria of code 5293, “moderate; recurring attacks.”  The VA, based on the same STR evidence, conferred a 20% rating under code 5293-5292 (limitation of motion) citing the applicable criterion of “moderate” ROM limitation under code 5292.  

Other than the above codes (5292, 5293, and 5295), there were no other applicable codes in the 2002 VASRD.  Members agreed that the next higher 40% criterion of code 5292 for “severe” ROM limitation was not supported by the evidence (even moderate limitation was equivocally justified).  Members agreed that the next higher 40% criteria of code 5293, “severe; recurring attacks, with intermittent relief,” were likewise not in evidence, given the lack of documented “attacks” and the functional status reflected in the NARSUM and orthopedic addendum.  None of the next higher 40% criteria under code 5295, “listing of the whole spine to opposite side ... marked limitation of forward bending ... loss of lateral motion,” were in evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.

Contended PEB Conditions:  Cervical Spondylosis, Shoulder Impingement, and Knee Pain.  These conditions were mentioned only in passing in the NARSUM, and there was no outpatient STR evidence of any clinical acuity for any of them during the MEB period.  All were of long-standing duration, and it was specifically noted in the NARSUM that the cervical and knee conditions had not been significantly symptomatic for a number of years.  All of these conditions were judged to meet retention standards; none were profiled at the time of separation; and, the commander’s performance statement addressed only the consequences of the back injury.  

The panel’s main charge was to assess the fairness of the PEB’s determinations that the above conditions were not unfitting.  The panel’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Members agreed that there was no performance-based evidence indicating that any of the above conditions interfered with duty requirements to an extent that would have prohibited further military service.  After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the cervical, shoulder, or knee conditions; thus, none of them were eligible for service rating.

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervical, shoulder, and knee conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150629, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008797, XXXXXXXXXXXXXXXXXX 

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Dear XXXXXXXXXXXXXXXXXX:

	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), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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