RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00368
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040930

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

CI CONTENTION:  Additional unfitting conditions were not contended.  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 - 20040707	VARD - 20150728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbosacral Strain	5237	20%	20040907	
			Degenerative Disc Disease Associated with Lumbar Sacral Strain	5010	10%	20040907	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Low Back.  According to the service treatment record (STR) the CI’s low back pain began in basic training.  Radiographic imagining (MRI) revealed a “tiny” L4-L5 herniated disc without canal stenosis or neuroforaminal compromise.  There was no surgical indication.  An orthopedic follow-up physical examination on 14 April 2004, 6 months prior to separation, noted lumbar spine range of motion (ROM) of flexion to 60 degrees (normal thoracolumbar 90) and a combined ROM was not provided; painful motion was not addressed. Thoracolumbar measurements were not provided.
At an orthopedic evaluation on 28 April 2004, 5 months prior to separation, the CI reported back pain with spasms, and leg pain.  Physical examination of the spine revealed no evidence of scoliosis, asymmetry or tenderness.  Thoracic spine ROM was “normal” and lumbar flexion was 5 degrees, and a combined ROM was not provided; painful motion was not addressed.  The CI reported pain with examination maneuvers which would not be expected to elicit pain, based on the known pathology.

At the Medical Evaluation Board (MEB) examination (recorded on DD Forms 2807 and 2808) dated 19 May 2004, 5 months prior to separation, the CI complained of daily back pain that radiated down the left leg.  Physical examination showed lumbosacral tenderness but no spasm.  Lumbar spine ROM was flexion to 30 degrees and combined ROM was 135 degrees (normal thoracolumbar 240); painful motion was present.  Thoracolumbar measurements were not provided.  An MEB consultant evaluation on 07 June 2004 reported that the CI could not run, jump, or perform push-ups or sit-ups due to back pain.  Physical examination showed lumbar ROM of flexion to approximately 20 degrees and a combined ROM was not provided; painful motion was not addressed.  Thoracolumbar measurements were not provided.  At the MEB NARSUM examination on 16 June 2004, the CI reported that his back condition began in July 1998 when he strained it during a field exercise.  He noted constant low back pain which increased with standing more than 10 minutes, repeated bending, heavy lifting and any impact activity. Physical examination performed the day prior showed lumbar spine ROM of flexion to 30 degrees and combined ROM was 135 degrees; painful motion was present.  Thoracolumbar measurements were not provided. 

At the 07 September 2004 VA Compensation and Pension (C&P) General evaluation, performed less than 1 month before separation, the CI reported low back pain that radiated to either leg once or twice per month.  He could walk one-quarter mile, sit for 30 minutes and lift 15 to 20 pounds.  Physical examination showed mild, diffuse lumbar spinal tenderness and normal spinal contour.  Lumbar spine ROM of flexion was 30 degrees and a combined ROM was not provided, painful motion was present.  Thoracolumbar measurements were not provided.  Lumbar flexion greater than 30 degrees was observed during distraction testing, and pain was reported with another maneuver not expected to cause pain. The examiner opined that the DeLuca testing (assessment of additional functional loss associated with repetitive use) was invalid.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5237 (lumbosacral strain).  The VA initially rated lumbosacral strain 30% coded 5237, based on the C&P examination less than 1 month before separation, citing limitation of motion greater than 30 degrees (per the examiner’s reference to ‘distraction testing’) as the basis for a 20% rating, and also added a 10% rating in consideration of the DeLuca testing.  A subsequent 2015 VA Rating Decision reduced the low back condition to 20% coded 5237 effective to the date of separation, and then assigned an additional 10% rating for degenerative disc disease associated with lumbosacral coded 5010 (arthritis due to trauma).  Later a 2016 VA Rating Decision acknowledged that the additional 10% rating was an error IAW VASRD §4.15 (avoidance of pyramiding), stating the single 20% low back rating coded 5237 was appropriate.

In deliberating a rating recommendation, the panel was challenged by the fact that all examinations reported lumbar ROM, and not thoracolumbar ROM as required by the VASRD.  According to the American Medical Association, normal thoracic flexion is 45 degrees.  The only report in evidence of thoracic motion was by the orthopedist on 28 April 2004, who stated that thoracic ROM was normal.  That same examiner noted lumbar flexion of 5 degrees.  Combined thoracolumbar flexion was therefore 50 degrees (45 plus 5), which warranted a 20% rating (for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees).  No other examination provided details sufficient to allow a reasonable calculation of thoracolumbar flexion.  However, even conceding that measurements were thoracolumbar, the panel noted that the examination most proximate to separation was the C&P (less than 1 month before separation) which measured flexion to 30 degrees, but the examiner observed the CI’s ability to flex beyond that point.  Panel members agreed that this evidence did not support a higher 40% rating (for thoracolumbar flexion not greater than 30 degrees).  Additionally, the panel agreed that the C&P examiner’s statement indicating that DeLuca testing was invalid precluded an additional 10% rating on the basis of DeLuca.  Finally, there was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula for IVDS.  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 low back condition, coded 5237.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160526, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015435, 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