RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00063
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20021121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Construction Engineer Supervisor, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “The severity of back injury has significantly got worse to where I’m in pain daily plus I was recently diagnosed with PTSD.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.    

RATING COMPARISON:  

SERVICE PEB - 20020809	VARD - 20021209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Degenerative Disc Disease, Lumbar Spine with Sciatica and Scoliosis of the Thoracic Spine	5292-5293	20%	20021105	
Scoliosis	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  The VASRD coding and rating standards for the spine at the time of the CI’s date of separation (DOS) were changed effective 23 September 2002, but not yet in effect at the time of the PEB adjudication.  The 2002 and 2003 standards for spine ratings considered the lumbar spine separate from the thoracic spine and ratings based on range of motion (ROM) impairment and were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment and provide normal values for thoracolumbar ROM.  Of special significance in this case is VASRD code 5293 (intervertebral disc syndrome) criteria changed effective 23 September 2002.  The PEB-timeframe criteria included radicular symptoms (sciatica); however, the DOS timeframe criteria were changed to incapacitating episodes only (although current criteria include either incapacitating episodes or use of the General Rating Formula for Diseases and Injuries of the Spine which includes radicular pain symptoms).  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in August 1991 after heavy lifting.  In September 2001, an MRI showed degenerative disc disease with bulging at L3-4, L4-5, without nerve root impingement or displacement.  During the 5 May 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported back pain on and off since 1991 due to recurring injuries.  He complained of numbness and tingling radiating to both feet, and back pain so severe that sometimes he was "paralyzed" from the waist down and totally lost all feeling and motion below the waist for 30-60 minutes (this occurred “12-24” times since 1994 with emergency department visits).  Physical examination showed scoliosis in the upper lumbar/lower thoracic spine, lumbar spine tenderness, and no spasm.  Lumbar ROM was forward flexion from 0-85 degrees and all other planes from 0-30 degrees.  There was increased LBP pain with straight leg raise testing.  Reflexes and strength were normal, but sensation was decreased in the L5 distribution.  

At the 17 June MEB orthopedic consult, the CI complained of LBP intermittently for 11 years and new onset of radiation into both legs over the last year with pain and numbness.  Physical examination showed the CI could walk heel-toe walk without difficulty.  He could forward flex with his hands approximately 18 inches from the floor which would be “approximately 65 degrees.”  There was 0 degrees of extension, with 20 degrees of right and left lateral bending.  Straight leg raise tests were negative and there was minimal lumbar tenderness and no spasm.  Sensation was decreased bilaterally in the S1 dermatome with slightly decreased rectal tone.  Motor and reflex testing were normal.  The surgeon indicated the CI was not a surgical candidate. 
The 20 June 2002 MEB NARSUM examination, 5 months before separation, reiterated findings detailed in the 5 May 2002 MEB history and examination.  

At the 5 November 2002 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported daily LBP with occasional radiation into the right leg (“without any characteristic picture of any sciatica”).  Physical examination showed normal posture and gait, and minimal/slight lower thoracic scoliosis without spasm or pain in the area.  The lumbar spine had evidence of a moderate lumbar curve reversal and muscle tightness with non-localized tenderness but without spasm.  ROM was forward flexion of 0-75 degrees, decreasing to 0-65 degrees on repetition.  Extension was 0-30 degrees, decreasing to 0-20 degrees after repetition.  All other planes of ROM were over 30 degrees without decrease on repetition.  There was no evidence of any radiculitis symptoms.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded analogously as 5295 (lumbosacral strain), citing slight limited ROM due to pain alone, with likely application of AR 635-40, B-29.  The VA rated the LBP condition 20%, coded 5292-5293 (limitation of motion of the lumbar spine and intervertebral disc syndrome), based on the C&P evaluation, citing objective evidence of moderate limitation of motion.  

As noted above, and IAW DoDI 6040.44, this panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel considered the ROM evidence above and adjudged that there was sufficient evidence of pain limited motion to meet the 5292 criteria of a “moderate” 20% rating for limitation of lumbar spine motion based on the orthopedic and C&P examinations.  There was insufficient evidence of incapacitating episodes (period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician) for the next higher rating, and insufficient evidence of an unfitting and separately ratable radiculopathy in association with intervertebral disc syndrome.  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 LBP condition, coded 5299-5292.  

Contended PEB Condition:  Scoliosis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting and/or separately ratable.  The contended condition was part of the back pain condition and is considered under the spine rating above.  A fixed spine deformity not due to vertebral fracture or other spine pathology is not separately ratable IAW VASRD guidelines.  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.  

BOARD FINDINGS:  In the matter of the chronic LBP condition, the panel recommends a disability rating of 20%, coded 5299-5292 IAW VASRD §4.71a.  In the matter of the contended scoliosis condition, the panel agrees that it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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	5299-5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20171211, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004644, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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