RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01983
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070929

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

CI CONTENTION:  The CI’s condition continues to worsen.  The 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 – 20070823 	VARD – 20080226 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, due to Lumbar Degenerative Disc Disease (DDD), without Neurologic Abnormality	5299- 5242	0%	Lumbar DDD	5242	10%	20080102 	
RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain with DDD.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had LBP that began after a fall during combatives training in August 2006.  At a primary care visit in March 2007, 6 months prior to separation, physical examination showed spasms, abnormal posture, normal gait, and a ROM “decreased by 10 degrees in all planes.”  During a medical evacuation (medevac) flight in April 2007, the CI was noted to ambulate with a cane and a slight limp.  At a primary care visit in April 2007 the gait was normal.  At another primary case encounter in June 2007, the spine was noted to have an abnormal curvature without mention of gait abnormality.  Later orthopedic clinic visits in May and July noted no spasms and no mention of gait abnormality.  
Magnetic resonance imaging (MRI) studies done in May 2007 showed DDD at L4-5 and L5-S1 with a herniated disc at L4-5.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  

At the 17 July 2007 MEB NARSUM examination, 2 months prior to separation, the CI reported LBP with occasional radiation to the leg.  Physical examination showed normal strength and sensation with no evidence of muscle spasm, tenderness, or radiation.  At an 8 August 2008 physical therapy (PT) visit for ROM measurements, flexion was to 50 degrees (90 normal), extension was to 10 degrees (30 normal), with normal bilateral flexion and bilateral rotation.  There was evidence of painful motion with normal gait, and no evidence of spasm, guarding, or abnormal contour.  During the August 2007 MEB examination (recorded on DD Forms 2807 and 2808), the CI reported LBP, tingling of the right leg and numbness of the toes.  Physical examination showed “decreased” range of motion (ROM) of the lumbar spine with no evidence of radiation or muscle spasms.  

At the 2 January 2008 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported complaints of LBP with intermittent right lower extremity tingling.  Physical examination showed a normal gait and spinal contour, and no muscle spasm.  Thoracolumbar flexion after repetition was to 90 degrees (normal) with no documentation of painful motion.  There was normal strength and reflexes, and no evidence of nerve tension.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 0% for the LBP condition, analogously coded 5242 (degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain, without spasm or tenderness.  The VA rated 10% for the back condition coded 5242, based on the C&P examination 3 months after separation, citing that “although objective findings do no fully support a 10% evaluation, there is MRI evidence of degenerative joint disease which supports a history of intermittent pain which sometimes mildly limits function.”  

The panel noted the disparity between the PT and C&P examinations.  Careful review of the evidence proximate to separation was used to determine the probative value of each examination.  Both PT and VA examinations were IAW VASRD goniometric measurements, and therefore determined to be of equivalent weight.  The PT examination was more proximate to separation and supported a 20% rating based on limitation of ROM, while the C&P examination supported a 10% rating, based on functional limitations.  Review of the STR entries prior to separation documented normal gaits and absence of muscle spasm.  One STR entry documented spasms that did not result in abnormal gait.  As the STR entries supported the evidence documented at the VA examination, the panel concluded that the VA examination was more probative to rating and that the evidence more closely supported a 10% rating.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering the totality of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10%, coded 5242.  

BOARD FINDINGS:  In the matter of the low back condition, the panel unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  There are 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 Back Pain with DDD	5242	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150715, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170010018, 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