RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX
	CASE:  PD-2015-02115
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Chemical Operations Specialist, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  “Effects from injuries – especially my back – remain + cause daily struggles in everyday life.  The numbness in my right leg + foot make it difficult to walk at work.”  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 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 - 20051006	VARD - 20070418	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain 	5299-5242	10%	Thoracolumbar Spine Degenerative Dis Disease	5243	10%	20070418	
			Right Lower Extremity Radiculopathy	8620	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an acute onset of low back pain with right lower extremity (RLE) radiation in 2002 after heavy lifting.  Magnetic resonance imaging (MRI) showed degenerative disc disease (diffuse bulge at L4/5 without neural encroachment), and electromyography (EMG) showed a “mild” acute RLE (L5) radiculopathy.  There were multiple STR entries that recorded normal neurological findings with 5/5 strength (normal), although a sole examiner documented 4+/5 proximal RLE strength.  Reflexes were invariably reported as normal, but there was occasional mention of mild RLE sensory impairment.  A neurosurgical consultant opined that surgery was not indicated.
  
There were some STR entries that recorded grossly normal range of motion (ROM) and others that noted non-specifically decreased ROM, but none that indicated severe limitation.  Measured ROM in an outpatient entry by the NARSUM provider in May 2005 (6 months before separation) showed a flexion of 75 degrees (normal 90) with a combined ROM of 190 degrees (normal 240).  A previous examiner documented flexion of 90 degrees, and the neurosurgical consultant documented flexion to “almost touch his toes” (approximately 90 degrees).  There was ample STR documentation of normal gait, albeit with two exceptions; and, there was no documentation of abnormal spinal contour or incapacitating episodes.

The 9 September 2005 NARSUM examination, 2 months prior to separation, documented that the CI “is currently stable with regard to his chronic low back pain and intermittent [RLE] radiculopathy symptoms.”  The pain was rated “moderate and constant” with limitations on “running, jumping, high impact activities, heavy lifting, or frequent twisting or bending.”  Physical examination recorded a normal gait, “mild” tenderness and spasm, and normal neurological findings (5/5 strength, symmetric reflexes) with the exception of “slightly decreased light touch” of the right lateral foot (distal S1 dermatome).  ROM measurements showed a flexion of 45 degrees with a combined ROM of 185 degrees.  Of note, in a subsequent STR entry that October 2005 (3 weeks before separation) the NARSUM provider documented “good” ROM with no spasm.

An 7 February 2007 orthopedic VA Compensation and Pension (C&P) examination, performed 15 months after separation, documented back pain rated 5-6/10 with intermittent RLE radiation and subjective “numbness and weakness on occasion.”  The CI was employed as a plumber (no incapacitating episodes specified) and the only functional limitation documented was a 45-minute walking tolerance.  Physical examination recorded a normal gait and spinal contour, the absence of spasm or tenderness, and neurological findings of 4+/5 RLE strength (“giveaway weakness”) and “hypoactive” (albeit 1+ and symmetric) reflexes without documentation of sensory testing.  ROM measurements showed a normal flexion of 90 degrees with a combined ROM of 200 degrees, specifying painful motion in some planes.  A separate VA specialty examiner on the same day documented a normal gait and grossly normal ROM.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5242 (degenerative arthritis of the spine), citing ROM “limited by pain” suggesting application of Army Regulation 635-40 (B-29, e).  The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing “some limited motion” (consistent with the VASRD §4.71a combined ROM criterion).  The VA additionally rated the RLE radiculopathy at 10% under code 8620 (sciatic nerve) for “mild” impairment.  

There was insufficient evidence for abnormal gait or contour to support a 20% rating, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  There was, however, conflicting ROM evidence.  The flexion to 45 degrees documented in the NARSUM satisfied the §4.71a 20% criterion of “flexion ... greater than 30 degrees but not greater than 60 degrees,” although all other ROM evidence (STR and VA) was consistent with the PEB’s 10% rating.  Since the preponderance of evidence (the NARSUM provider’s earlier measured ROM and observed ROM on the proximate to separation, observed and measured ROM by multiple other service providers, and VA measured ROM corroborated by another VA provider) favored the 10% criteria, member consensus was that the single measurement of flexion in the NARSUM was insufficient to support a higher rating recommendation on that basis.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), panel consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the panel, by a majority vote, recommends no change in the PEB adjudication.   The single voter for dissent recommends modification to 20% and did not elect to submit a minority opinion.  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 20150624, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011087, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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,