RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00404
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20021209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Basic Trainee, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  The CI’s condition continues to worsen.  The 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 - 20021101	VARD - 20030905	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Low Back Disorder	5292	40%	20030731	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI experienced a gradual onset of back pain after a long ruck march during basic training 7 months before separation in May 2002.  Clinical entries in the STR documented sporadic left lower extremity (LLE) radiation with transient sensory symptoms (foot only) and no subjective weakness.  Imaging (X-rays and MRI) were normal (no surgical indications).  There was ample STR documentation of normal neurological findings (5/5 strength), and no evidence to the contrary.  A trial of conservative treatment did not result in sufficient improvement to allow a timely resumption of training.  There was STR evidence for some range of motion (ROM) limitation.  An early entry noted that the CI could touch her toes (i.e., normal flexion).  
A later entry documented measured flexion to 70 degrees (normal 90) extension with normal extension and bilateral flexion.  Another examiner recorded flexion to “9 inches from fingertip to floor” (~70-80 degrees), and non-specific ROM limitation and pain with extension and right side-bending.  There were no STR entries that documented more significant ROM limitation, abnormalities of gait or posture, or any debilitating flares of back pain.

The NARSUM examination on 9 October 2002, 2 months prior to separation, documented constant “moderate” pain with occasional LLE radicular complaints (no weakness) that limited sitting and standing to 30 minutes, and that prohibited running and multiple general soldiering requirements.  The physical examination recorded “mild paraspinal tenderness” and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  With regards to ROM, the examiner observed flexion “approximately to knees” (40-50 degrees) and non-specifically decreased extension and bilateral flexion.

A general VA Compensation and Pension (C&P) examination was conducted on 24 July 2003, 8 months after separation.  That examiner deferred the spine evaluation to the orthopedist (as follows), but recorded a normal gait.  Of probative significance, that examiner noted that the CI had been involved in a motor vehicle accident (MVA) 2 months earlier in May 2003, but stated that she “denies any residual problems from this.”

At the orthopedic C&P examination a week later (31 May), the CI complained of constant pain that was “extreme” after sitting or walking longer than 10 minutes.  She denied radicular pain or neurological symptoms; and, the examiner documented no interference with daily activities and did not note debilitating flares.  The physical examination recorded a normal gait without assistive device, a normal spinal contour, tenderness and spasm, and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  Measured ROM was flexion to 40 degrees with a combined ROM of 150 degrees (normal 240).  

The panel directed attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differed significantly from the current VASRD §4.71a general rating formula for the spine.  The PEB’s 10% rating under the older code 5299-5295 (analogous to lumbosacral strain) cited “characteristic pain on motion,” a 10% criterion of code 5295; and, no criterion for a higher rating under 5295 was in evidence.  The VA, based on the C&P evidence, conferred a 40% rating under code 5292 (limitation of motion).  The rater opined that the C&P evidence was more aligned with the “severe” 40% criterion of 5292, albeit invoking “benefit of the doubt.”  Code 5292 offered ratings of 20% for “moderate” and 10% for “slight” limitation of motion.  

Other than codes 5295 or 5292, the only code available in the 2002 VASRD that might be considered was code 5293 (intervertebral disc syndrome).  Members agreed, however, that it was neither clinically applicable nor favorable given the absence of evidence for “recurring attacks” requisite for a rating higher than 10%.    

The panel next deliberated the option of a rating higher than 10% under code 5292.  Members agreed that the ROM limitation evidenced in both the STR and the NARSUM could not be fairly characterized as “slight,” as requisite for a 10% rating under code 5292.  The code was thus advantageous and indicated IAW VASRD §4.7 (higher of two evaluations).  Having so concluded, the panel turned to deliberation of whether the ROM evidence was more fairly characterized as moderate (20%) or as severe (40%).  Members ultimately agreed that the overall ROM evidence was more appropriately characterized as moderate.  The observations in the NARSUM constituted the severest ROM limitation of all the service evidence; and, even though in conflict with the preponderance of the STR evidence, it still reflected just a 50% reduction in ROM.  That is logically aligned with “moderate.”  
Even the C&P evidence was reasonably aligned with moderate ROM limitation, as acknowledged by the VA rater’s concession to “benefit of the doubt.”  Furthermore, members agreed that the probative value of the C&P evidence suffered somewhat by the imposition of the post-separation MVA, despite the CI’s assertion that it did not exacerbate her back condition. 

Members additionally agreed that residual LLE radicular symptoms present at separation did not justify additional rating.  The evidence did not support the functional link to fitness requisite for service rating or the presence of a VASRD ratable deficit.  After due deliberation, considering all of the evidence and mindful of conceding VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the lumbar spine condition under code 5292.

BOARD FINDINGS:  In the matter of the lumbar spine condition, the panel unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a in effect.  There are 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	
Myofascial Injury, Lumbar Spine	5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160622, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015520, 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