RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02012
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070707

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

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 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.  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 determinations 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 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 - 20070601	VARD - 20071120	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5242	0%	Degenerative Disc Disease, Thoracolumbar Spine	5242	40%	20070619	
Panic Disorder	Not Unfitting	Panic Disorder	9412	30%	STR & VA Treatment	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in March 2004 without trauma.  The CI had radiating pain into his legs and magnetic resonance imaging (MRI) in February 2005 showed a central broad-based protrusion at L5 in contact with the L5 nerve and a normal radiographic (X-ray).  Electromyography (EMG) study was reported as negative.  Orthopedic consultation did not recommend surgical intervention.  The CI underwent multiple epidural steroid injections, physical therapy and pain management.  MRI in December 2006 showed a fairly large disk protrusion at L5-S1, producing bilateral foraminal compromise that was more pronounced on the right.  

The 23 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of back pain and herniated disk with central protrusion.  There was no entry under “Physical Examination.”  Physical examination recorded on DD Form 2808 documented painful motion.  Formal physical therapy (PT) range of motion (ROM) evaluation for the MEB, on 9 March 2007 (4 months prior to separation) used an inclinometer and documented pain limited ROMs as charted below.  There was no abnormal gait, abnormal spinal contour, no tenderness, no spasm, and no guarding.  

The CI had emergency department visits on 19 March and 14 April 2007, for severe lower back pain and severe back pain radiating into the legs respectively.  

At the 19 June 2007 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported back pain radiating into both legs, limitation of motion and weakness, and impaired lifting, bending, or prolonged standing or sitting.  The CI denied incapacitating episodes.  Physical examination showed normal gait, posture, and spine contour.  There was pain-limited ROM of the thoracolumbar spine with a flexion of 25 degrees (normal 90) and a combined ROM of 115 degrees (normal 240).  ROM was additionally limited after repetitive use by:  pain, fatigue, weakness, lack of endurance and pain had the major functional impact.  “The above additionally limit the joint function by 0 degrees.”  There was no evidence of radiating pain on movement, no muscle spasms, no tenderness, no ankylosis of the lumbar spine, and straight leg raising test was negative for radiculopathy.  There was no neurologic or motor deficit and no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  

The 4 September 2007 operative report, 2 months after separation, documented a microdiskectomy L5-S1 level, right side, with decompression of spinal roots for back pain and right leg pain.  Operative report showed the L5-S1 herniated disk was protruding and had broken through irritating the nerve root and that the thecal sac was under a fair amount of tension.  Records also show a recurrent herniation (increased symptoms and MRI evidence) and the CI underwent lumbar decompression and fusion surgery on 18 March 2008 (8 months after separation).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5299-5242 (degenerative arthritis of the spine), citing ROM limited by pain without tenderness or spasm (with likely application of AR 635-40, B-29).  The VA rated the low back condition 40%, coded 5242, citing limitation of forward flexion of 25 degrees.  

In assigning probative value to these somewhat conflicting examinations, the panel noted that the PT MEB measurements were using an inclinometer and consistent with other historical examinations.  Review of the STR detailed worsening of the CI’s condition through the later part of 2005 with multiple epidural steroid injections, and in November 2006 progressive worsening of symptoms with the addition of radiating pain and an epidural steroid injection in January 2007 that provided only transient relief and subsequently led to initiation of the MEB.  The panel majority adjudged that the two emergency department treatment visits after the date of the NARSUM, indicated clear worsening of the condition prior to separation.  The VA examination’s probative value was judged to be enhanced by its being before separation, closer to the date of separation and indicating repetition with DeLuca criteria.  The noted activities that the CI could perform were consistent with the CI’s underlying pathology of a herniated disk and nerve root impingement, and ROM limitations due to the CI’s pathology are not usually clinically associated with changes in spinal contour or muscle spasm, and are often relieved by sitting with bent legs.  There was also evidence of surgery within 2 months after separation for attempted correction of the back and leg pain.  Therefore, based on all evidence and the associated conclusions just elaborated, panel consensus was that preponderant probative value should be assigned to the VA ROM examination.  The panel majority agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) reported on the VA examination.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the low back condition, coded 5299-5242.  

Contended PEB Condition:  Panic Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

PANEL FINDINGS:  In the matter of the low back pain condition, the panel majority recommends a disability rating of 40%, coded 5299-5242 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended panic disorder condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the panel’s scope of review for consideration.  The panel majority recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5299-5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150705, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION:  

It is the minority position that the PEB rating should be modified to 20% versus the 40% recommended by the majority.  As cited in these proceedings, the ROM measurements provided by the service PT examiner were consistent with the minority-recommended 20% rating; whereas, the ROM evidence from the VA examiner was consistent with the majority-recommended 40% rating.  The majority supported its recommendation by assigning the determinant probative value to the isolated VA evidence.  The minority member strongly advocated assignment of the determinant probative value to the corroborated service evidence.  

The minority member asserted that the probative value factors in this case heavily favor the PT ROM evidence, as follows:

1) The PT ROM evidence was better aligned with and corroborated by the totality of evidence.  There were eight entries identified in the available STR that documented ROM observations by multiple examiners, taken from a stable clinical course over a 3-year period.  All of these documented grossly normal ROM except for two.  One of the latter documented “moderate” limitation of extension, but normal forward (hands to the floor) and bilateral flexion.  The only other contrary entry made the non-specific comment “limited ROM.”

2) The PT ROM evidence was better aligned with collateral physical findings and examination quality.  Both the PT and VA examiners documented the absence of gait or spinal contour disturbance, guarding, spasm, or tenderness.  The severe ROM limitation reflected by the VA measurements are very difficult to clinically reconcile with such findings.  Furthermore, the VA examiner recorded a single measurement in each plane of motion, each identical to the degrees reported for onset of pain; despite adding that there was no ROM degradation with repetition.  The PT examiner, conversely, provided three measurements in each plane (downward trend for extension only).  All of this is suggestive (with minimal speculation) that the measured ROM end-points by the VA examiner were determined by subjectively reported pain thresholds rather than by ratable spine immobility.  

3) The PT ROM evidence was better aligned with the clinical picture.  The severe ROM limitation reflected by the VA measurements is not consistent with the pathology (chronic, stable, non-surgical disc disease).  The abrupt deterioration in ROM at the time of the VA examination, preceded by a lengthy stable course and with no history of any re-injury or other exacerbation, defies clinical logic.

 4) The severe ROM limitation reflected by the VA measurements was inconsistent with the overall functional evidence.  Various entries noted that the CI could drive, dress himself, sit for protracted examinations, etc...; and, his profile permitted running and walking at his own pace.  Taken at face value, the VA ROM limitations would impose an inability to engage in any of these activities.

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified to 20% effective to the date of his prior medical separation.

AR20170011063, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by majority vote, recommended that your percent of disability be increased to 40%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion that your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  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.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure