RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02229
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071007

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

CI CONTENTION:  The CI contends an increase in his back rating.   The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’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 Board’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 Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’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 Board 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 Board 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 - 20070828	VARD - 20071217	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lumbar Back Pain…	5299-5242	0%	IVDS, Thoracolumbar Spine, with back Scars	5243	40%	20070720	
			Radiculopathy, Right Lower Extremity, Secondary to IVDS	8523	20%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

Chronic Lumbar Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with a right L4 and right L5 laminectomy with fasciotomy and discectomy on 21 September 2006.  However after the surgery the CI “complained of progressive heaviness and decreased feeling of his right leg with limping when walking.”  The CI underwent a repeat L4-L5 laminectomy with fasciotomy and discectomy on 9 November 2006.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbago status post L4-5 laminectomy and discectomy times two” for PEB adjudication.  

During the neurosurgery examination on 11 April 2007, 6 months prior to separation, the CI complained of “some residual lumbar radiculitis.”  The examiner stated that in regards to the CI’s radicular complaints it was “really hard to tell what [was] residual and what [was] fictitious.  The examiner opined that the CI’s radicular symptoms probably involved secondary gain issues (higher disability rating) because the CI had “full strength, normal reflexes, and only diminished sensation and subjective complaints of pain.”  During the June 2007, MEB examination (recorded on DD Forms 2807 and 2808) 4 months prior to separation, the CI reported that he had “numbness or tingling” due to severe back pain and “chronic nerve variation at L4/L5.”  The physical examination showed decreased ROM as indicated in the chart above with pain elicited by motion.  There was no muscle spasm and the CI had a normal gait and spinal contour.  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  Motor strength and reflexes were normal.  

At the time of the physical therapy ROM study on 21 June 2007, 4 months prior to separation, the CI reported back pain at level 6 of 10 on the pain scale.  On examination the CI “had difficulty with transitional movements” and “ambulated with assistance using [a] single point standard cane.”  The CI’s ROM was decreased as indicated in the chart above with pain in all planes of motion.  The CI was noted to have 4/5 bilateral extremity strength due to a “severe increase in pain with resistance.”  
 
At the 20 July 2007 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported “stiffness in lower back and weakness in lower back when standing” with a pain level of 7/10.  The CI stated that “his spine condition [did] not cause incapacitation.”  The physical examination showed decreased ROM in all planes of movement with functional loss of an additional five degrees in all planes of motion after repetitive use due to pain (major functional impact), fatigue, weakness, and lack of endurance, as indicated in the chart above.  The CI had an abnormal gait and muscle spasm was present. However there was no report of guarding and the CI had normal spinal contour.   The CI also had tenderness.  There was “radiating pain on movement” from the “lower back to left toes,” but examination tests for radicular symptoms were negative bilaterally.  The CI had a motor weakness of 4/5 with right hip adduction, but all other muscles were normal.  There were sensory deficits in the right lower extremity and the CI’s right knee jerk was absent.  The 31 July 2007 MEB NARSUM examination, 2 months prior to separation, showed a slow and guarded gait, but there was no muscle spasm or abnormal spinal contour.  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  There was no tenderness palpated.  Motor strength and reflexes were normal, but during the sensory evaluation the CI complained of tingling in the right L4-5 distribution.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing “no evidence of tenderness, spasm or guarding, without significant motor neurologic deficit” and “ROM limited by pain.”  The VA rated the back condition 40% coded 5243 (intervertebral disc syndrome (IVDS)), based on the VA C&P examination 3 months before separation, citing limitation of forward flexion of 30 degrees or less.  The VA additionally rated the right lower extremity radiculopathy at 20% under code 8523 (paralysis of the deep peroneal nerve), citing “incomplete paralysis of foot movements which is severe.”  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees as reported on the MEB and physical therapy examinations.  In assigning probative value to these somewhat conflicting examinations, the Board noted that the MEB measurements were consistent with other proximate (pre-separation) examinations by physical therapy and neurosurgery.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5299-5242.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board 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 Lumbar Back Pain	5299-5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150814, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170006487, XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX:

	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