RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02149
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030213

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Unit Supply Specialist, medically separated for “chronic low back pain post L5 discectomy” with a disability rating of 10%.  

CI CONTENTION:  Lower spine condition has worsened which impacts my activities of daily living.  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 - 20021107	VARD - 20030818	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Post L5 Discectomy	5293-5299-5295	10%	Lumbosacral Hemilaminectomy &  Disc-ectomy, with Radiculopathy, Bilateral Sacroilitis, Schmoral's Nodes, & Residuals	5292	20%	20021202	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Post L5 Discectomy.  The Veteran Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine which were in effect at the time of permanent separation were changed to the current §4.71a rating standards on 26 September 2003, following the CI’s permanent disability disposition.  IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had surgery for a herniated lumbar disc in 1994.  He did relatively well until approximately 1998 when he experienced more low back pain, which then worsened in 2001.  Although imaging studies in January 2002 showed a mild L5-S1 disc bulge that touched both S1 nerve roots and a suggestion of scar tissue near the nerve roots, further surgery was not recommended.  Electrodiagnostic studies in April 2002 showed no evidence of a left sided radiculopathy.  A physical examination on 29 January 2002, 12 months prior to separation, noted tenderness in the lower lumbar area and “FROM” (full range of motion).  The CI was evaluated on 11 March 2002, 11 months prior to separation, for an acute exacerbation of back pain after slipping on a book and falling the day before.  Examination showed lumbar region tenderness and muscle spasm.  ROM was limited by pain.

At the MEB examination (recorded on DD Forms 2807 and 2808) on 11 July 2002, 7 months prior to separation, the CI reported using a back brace.  Physical examination showed no deviation and no tenderness of the spine.  ROM measurements performed by physical therapy on 17 July 2002 showed lumbar spine flexion of 90 degrees (American Medical Association normal 60 degrees), extension 20 degrees (normal 25), right and left lateral flexion 40 degrees respectively (normal 25), and right and left rotation 45 degrees respectively.  There was no mention of painful motion or muscle spasm.  The MEB NARSUM examination on 6 August 2002, 6 months prior to separation, noted complaints of constant lower back pain that radiated down both legs.  Almost any activity, including sitting for more than 45-60 minutes, caused severe pain for 2 hours.

At the 2 December 2002 VA evaluation, 2 months before separation, the CI reported constant lower back pain with radiation to the hips and to the left leg and foot.  His back condition prevented standing for longer than 15-20 minutes, walking more than one-half mile or any running.  He could not climb a flight of stairs, perform gardening activities or push a lawn mower.  Physical examination showed a guarded gait due to lower back pain, and posture of 10 degrees of flexion at the waist secondary to pain.  Tenderness of the lumbar spine was present.  Lumbar spine flexion was 60 degrees, extension 20 degrees, right and left lateral flexion 30 degrees each, and right and left rotation 20 degrees each.  Painful motion was present in all planes of motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded 5293-5299-5295 (intervertebral disc syndrome; analogous lumbosacral strain), noting normal ROM and pain with activity.  The VA initially rated the low back pain condition 10% under the 5292 code (limitation of lumbar motion), citing “slightly limited motion,” but changed the rating to 20% (effective the day after separation) citing “moderate limitation of motion with pain on motion and chronic pain all the time” as the rationale.  The panel agreed that criteria supporting the next higher 20% under the 5295 code were not in evidence (i.e. “with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position”); but debated a rating under other applicable codes in effect at the time of separation.  There was no evidence of incapacitating episodes to warrant a rating for incapacitating episodes under the 5293 code (intervertebral disc syndrome).  Under the 5292 code a 20% rating is justified for “moderate” limitation of lumbar motion.  The panel noted that the service PT and VA examiners both reported measurement of rotation.  However, lower spine rotation is a thoracic function, with a negligible contribution from the lumbar spine.  It thus appears that these examiners were in fact measuring thoracolumbar, not lumbar, planes of motion.  Normal thoracolumbar flexion, according to current VASRD standards, is 90 degrees.  Based on the VA exam, which was more proximal to separation, more complete, and therefore more probative than the PT examination, the panel majority concluded that the “moderate” stipulation of the 20% rating was an accurate descriptor.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the chronic low back pain condition, coded 5292.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel majority recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  The single voter for dissent recommended no change 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 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 Low Back Pain Post L5 Discectomy	5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150623, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010051, 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