RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00414
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051005

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Abrams Tank Systems Maintainer, medically separated for “chronic radiating low back pain” with a disability rating of 10%.

CI CONTENTION:  Current condition supports a higher rating.  The VA’s rating greater than 12 months after separation supports a higher rating.  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 - 20050912	VARD - 20060620	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5299-5237	10%	DDD, L4-L5 & L5-S1, Lumbar Spine	5243	0%	20060323	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:

Low Back.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began as early as 1997, and was exacerbated in February 2003 after heavy lifting.  Radiographic imaging (MRI) performed in August 2004 showed mild bulging intervertebral discs at spine levels of the lower spine (L5-S1), with no nerve root compression or definite herniation (i.e. ruptured or herniated discs).  There was no surgical indication, and conservative treatment including physical therapy, traction, electrostimulation (TENS), and epidural steroid injection did not result in improvement sufficient to allow unrestricted duty.

At the time of the 4 January 2005 chiropractic clinic appointment, 9 months prior to separation, the CI reported chronic low back pain since 1997 (secondary to sports and road construction work), greater on the left than the right, rated at 4/10 in severity with flares to 10/10.  The CI indicated the pain was aggravated by getting up from a seated position.  He also reported radiating pain and tingling into the left thigh, stopping at the knee.  Physical examination showed the CI walked well without assistance and sat with no distress.  Spinal tenderness was present.  Lumbar-goniometric range of motion (ROM) was “full in all planes with pain during flexion.”  X-rays performed the week prior were reported as showing a normal lumbosacral spine (the lowest segment of the spine).  Provocative testing for nerve root impingement were reported as negative bilaterally, and neurologic examination was normal.

During the 3 February 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported a herniated disc in his lower back, with back pain and periodic numbness and tingling into both legs.  Physical examination reported “decreased spine ROM”, with lumbar area tenderness and positive testing for nerve root irritation (straight leg raise).

At the 26 July 2005 MEB orthopedic consultation, 2 months prior to separation, the CI reported constant low back pain which prevented him from running more than 1/4-mile, performing push-ups or sit-ups, or lifting more than 30 pounds.  The CI also reported radiating pain and weakness down to his toes and feet in a non-anatomic distribution (stocking distribution), but denied bowel of bladder symptoms.  Physical examination recorded a normal gait and spinal tenderness.  He was able to heel and toe walk (each negative indicators for radiculopathies), and tandem gait (negative for ataxia, or uncoordinated gait).  The CI reported pain during testing for radiculopathy on the right lower extremity (an indicator of possible nerve root compression on the right).  Neurologic examination was normal, including strength testing, reflexes, and sensation to light touch in all lower back dermatomes.  The orthopedic physician opined the CI had “mechanical low back pain with multiple Waddell’s signs (non-physiologic findings) and MRI showing no significant/concordant findings.”

The 25 August 2005 MEB NARSUM examination, 1 month prior to separation, noted complaints of constant severe lower back pain with intermittent numbness that would start from the feet and then run up the legs.  The CI denied bowel or bladder symptoms, and indicated he was taking no medication for his back pain.  Physical examination showed no back tenderness, spasm or deformity.  Provocative testing for nerve root irritation was negative bilaterally and neurologic examination was normal.  Gait was normal and included the ability to heel and toe walk, (indicating the absence of certain radiculopathies).  Goniometric-repetitive ROM was flexion to 50 (normal 90) and combined ROM was 195 degrees (normal 240) with painful motion.  There were 3/5 Wadell’s signs present.

At the 23 March 2006 VA Compensation and Pension (C&P) evaluation, performed 6 months after separation, the CI reported back pain which occurred 5 times per week and lasted 2 hours.  The CI indicated he could function without medication during the pain, and was receiving no treatment for the pain.  He also indicated there was no functional impairment from the back pain and had no lost time from work.  He acknowledged the ability to walk, garden, push a lawn mower, take out trash, and drive a car (along with other activities).  Physical examination showed a normal posture and gait with no use of assistive devices.  The back showed no tenderness or spasm and there were no complaints of radiating pain on movement.  Provocative testing for nerve root irritation was negative bilaterally.  ROM was recorded as flexion to 90 degrees and combined ROM was 240 degrees; painful motion was not addressed.  There was no change in ROM after repetition.  There were no signs of intervertebral disc syndrome (IVDS) and no signs of permanent nerve root involvement.  Neurologic examination was normal.  Radiographic studies indicated a normal lumbosacral spine.

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), citing spinal tenderness.  The VA rated the low back condition 0%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 6 months after separation, citing a normal ROM and lack of objective evidence to support a higher rating.

The panel deliberated the probative value of the evidence in record.  The MEB NARSUM examination was closest to separation and was the single pre-separation evaluation to formally measure spine ROM with repetition.  The post-separation C&P examination was more remote from separation and adjudged as post-separation improvement.  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) as reported on the NARSUM examination.  The next higher 40% rating stipulates flexion not greater than 30 degrees, which is not supported by evidence, so a higher rating is not justified.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  While the CI reported radiating numbness, pain, tingling and even weakness, these symptoms were not documented on examination.  All examinations proximate to separation reported normal neurologic functioning.  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 back condition, coded 5299-5237.

BOARD FINDINGS:  In the matter of the chronic radiating low back pain, the panel unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  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	
Chronic Radiating Low Back Pain	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160706, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015557, 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