1RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00367
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Aircraft Components Repair Supervisor, medically separated for “chronic low back pain due to lumbar degenerative disc disease without neurologic disability” with a disability rating of 10%.  

CI CONTENTION: He was given a higher rating for his condition by the VA. 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 - 20040505	VARD - 20040317	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Herniated Lumbar Nucleus Pulposus with Degenerative Disc Disease and Spondylosis L2-S1	5243	60%	20040317	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP) … .  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in 1985 in a vehicle accident during a military exercise and was reinjured in 1999 during a training exercise.  Radiographic studies (date unknown) showed documented osteophytes (bone spurs) with degenerative disc disease (DDD).  There was no surgical indication.

The 24 November 2003 MEB NARSUM examination, 14 months prior to separation, noted exacerbations of LBP with running, sit-ups, heavy lifting, and prolonged sitting.  Physical examination showed no tenderness.  Range of motion (ROM) testing was flexion to 80 degrees (normal 90) and extension 15 degree (normal 30).  Straight leg raise (SLR) testing was negative.  Strength and sensation were normal.  At the December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 13 months prior to separation, the CI reported back pain with limited motion.  Physical examination documented decreased ROM of the spine.  

At the 19 February 2004 VA Compensation and Pension (C&P) evaluation, 11 months prior to separation, the CI reported constant LBP which radiated to the left lower extremity, wear of a back brace, and an inability to walk more than 100 yards.  The examiner noted the CI saw his private physician “who treats him with medication and steroid injections with relief.” The examiner also stated the CI was working in his civilian capacity as a dual-status military technician.  Physical examination showed an abnormal gait with guarded motion.  There was “marked” paraspinal muscle spasm with “exquisite” tenderness of the spine.  Assistance was required to undress and remove socks, as there was “marked” discomfort getting undressed and getting on and off the examination table.  Forward flexion was to 40 degrees (normal 90), extension 0 degrees (normal 30), right lateral flexion 10 degrees (normal 30) and left lateral flexion 20 degrees (normal 30), right rotation 55 degrees (normal 30) and left rotation to 50 degrees (normal 30) for a combined ROM of 130 degrees (normal 240). Diminished sensation and weakness were noted in the L5 and S1 nerve distribution.  Radiographic evaluation documented “marked” narrowing at the L5-S1 level with L2-L3 disc space narrowing as well.  

At the 18 May 2005 C&P evaluation, 4 months after separation, the CI reported constant left- sided LBP with numbness of the left leg and wear of a back brace.  He reported the need for occasional assistance to put on his shoes, however he was able to do light housework and light yardwork.  Significant aggravation occurred with excessive activities and certain movements.  Physical examination showed a stiff gait with an inability to perform certain testing (heel to knee, heel to toe, squat, forward flex and recover) due to back pain.  There was “much difficulty” getting on and off the examination table, but no assistance was needed.  Tenderness and muscle spasm were present.  SLR testing was positive.  Flexion and extension each decreased to 10 degrees, and both right and left lateral flexion decreased to 10 degrees each.

At the 15 February 2006 C&P evaluation, 13 months after separation, the CI reported constant LBP with radiation to the left calf and feet, aggravated by activity and prolonged sitting and standing.  The CI’s condition did not affect his ability to drive but did limit physical activities.  He reported wear of a back brace but denied use of a cane.  Physical examination showed use of a back brace, a significant limp favoring the left lower extremity, and frequent positional changes.  Tenderness and spasm were noted.  Forward flexion was to 50 degrees (normal 90), extension 10 degrees (normal 30), right lateral flexion 15 degrees (normal 30) and left lateral flexion 20 degrees (normal 30) and right and left rotation to “about 45 degrees” each (normal 30) for a combined ROM of 155 degrees.  The examiner noted the CI “prefer[ed] to hold on for support.”

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the chronic LBP with lumbar DDD condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing combined ROM of 175 degrees (using the 19 February 2004 VA examination).  It should be noted that the PEB arrived at 175 degrees by incorrectly adding 55 degrees right rotation and 50 degrees left rotation when the maximum value should only be 30 degrees for each rotation, thereby bringing the combined ROM to 130 degrees as noted in the analysis.  The VA rated the LBP condition 60%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination 11 months before separation, citing pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and with little intermittent relief.  

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) reported on both the February 2004 and February 2006 VA C&P examinations.  Alternatively, but of no additional benefit to the CI, a 20% rating was justified for evidence of spasm that caused guarding and/or an altered gait.  

The panel held the two aforementioned VA examinations as most probative given they were VASRD-compliant, complete, and equally proximate to separation.  The MEB NARSUM at 14 months pre-separation was incomplete, remote from the date of separation, and not VASRD- compliant.  The May 2005 VA examination (4 months post-separation) was not VASRD-compliant nor as thorough as the aforementioned VA examinations.  

The panel assessed the CI’s overall disability picture at the time of separation.  The commanding officer cited the CI’s critical issue as an inability to perform his duties in a tactical environment.  Clinical evidence proximate to separation also did not support the level of disability correlated with the May 2005 VA examination.  Therefore, IAW VASRD §4.7 (higher of two ratings) and mindful of VASRD §4.3 (reasonable doubt) the panel agreed the CI’s overall disability picture was best described by the 20% rating for his chronic LBP.  Additionally, there was no evidence of physician-prescribed bed rest for incapacitating episodes due to IVDS to warrant consideration of a higher rating under that alternate VASRD formula.  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 LBP condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic LBP condition, the panel unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  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 LBP	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015434, 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 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

Enclosure