RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00127
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Intelligence Analyst, medically separated for “chronic low back pain [LBP]” with a disability rating of 20%.

CI CONTENTION:  The CI contends he received a higher rating from the VA for his back condition.  The complete submission, with attachment, 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 – 20080702	VARD – 20090126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5237	20%	DDD, Lumbar Spine	5242	40%	20081014	
			BLE Radiculopathy	8520	NSC	20081014	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began at age 16 following a motor vehicle accident (MVA) in 1990 which resulted in a compression fracture in the lower back (site not specified).  He presented periodically with an aggravation of the LBP and was treated with duty limitations, physical therapy, and medications.  His symptoms worsened while deployed.  An MRI on 2 March 2007 showed mild degenerative disc disease (DDD).  Electrodiagnostic (EDX) studies, performed on 16 November 2007 were normal.  A repeat MRI on 16 November 2007 showed a herniated disc (HNP) at L4-5 with left nerve root impingement at L5.  On 17 March 2008, a little over 5 months prior to separation, the CI was seen for completion of the MEB separation examination documented on the DD Form 2808 and 2807.  Motor function and reflexes were normal.  The CI was noted to be “practically jumping on off exam table without any evidence of pain” (sic).  The range of motion (ROM) was normal.  It was also noted that the CI rode 100 miles on his motorcycle for the appointment.  Radiographic studies, on 16 April 2008, showed mild disc narrowing at L5-S1.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  

One day after the ROM measurements in physical therapy, at an orthopedic clinic appointment on 16 April 2008, the CI reported constant low back pain.  On examination forward flexed to 45 degrees with no tenderness to palpation or muscle spasm.  Spinal curvature, muscle strength and gait were normal.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root or sciatic nerve involvement were negative.  Additionally, the CI reported pain with 4 of 5 examination maneuvers not expected to elicit pain based on the known pathology.  The MEB NARSUM examination was dated 18 April 2008, 5 months prior to separation.  The physical examination showed the CI forward flexed to 60 degrees, with a combined ROM of 155 degrees.  Of note, the examiner measured the lumbar ROM (for which normal flexion is 60 degrees) rather than the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  All ROM measurements were limited by pain.  The CI walked with a normal gait, including heel and toe, and did not use an assistive device.  There was no muscle spasm, guarding or abnormal spinal contour.  The lower extremities showed normal motor and sensory functioning.  Similar to the previous examination, the CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  

At the VA Compensation and Pension (C&P) evaluation performed on 14 October 2008, 13 days after separation, the CI noted radiating pain down both legs to the feet with flares occurring ever 2-3 months.  He denied incapacitation from the back condition.  Examination revealed the CI forward flexed to 30 degrees with a combined ROM of 150 degrees, with painful motion present.  The CI had a normal gait and posture, showed no tenderness to palpation with normal motor and sensory functioning.  Atrophy was absent and the tone normal (no spasm).  The neurological examination was normal.  A flattening of the lumbar spine was present, along with bilateral radiating pain due to spinal nerve root or sciatic nerve involvement.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5237 (lumbosacral strain), citing limitation of motion.  The VA rated the degenerative disc disease condition 40% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 13 days after separation, also citing limitation of motion.  The VA additionally did not service connect bilateral radiculopathy citing no objective findings a disability existed.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and/or combined ROM (not greater than 120 degrees) reported on the Orthopedic and NARSUM examinations.  In assigning probative value to the somewhat conflicting examinations, the panel noted the MEB measurements were consistent with the majority of the other pre-separation examinations (by primary care, PT, physical medicine, chiropractic, and orthopedic clinics) as well as the pathology in evidence on imaging studies and clinical examinations.  The ROM values reported by the VA examiner are significantly worse than those reported by the NARSUM examiner and the majority of the measurements in the record.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements, especially in the absence of tenderness or spasm on the examination.  The panel members agreed the NARSUM examination was more consistent with the preponderance of evidence and more reflective of the anticipated severity based on the clinical pathology.  It was determined to be more probative for rating purposes and supported the 20% rating adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP condition.  

BOARD FINDINGS:  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160309, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014062, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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,					      
						      					
Enclosure