RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00631
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040813

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, UH-60 helicopters Repairer, medically separated for “chronic subjective back pain” with a disability rating of 10%.

CI CONTENTION:  Current condition 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 - 20040311	VARD - 20050920	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain …without Neurologic Abnormality	5239	10%	Mechanical Low Back Pain…	5242	10%	20050604	
			Left Lower Extremity Numbness and Radiculopathy	8620	10%	20050604	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain condition began in June 2002 after heavy lifting.  Diagnostic imaging showed bilateral pars interarticularis fractures at L5.  Electrodiagnostic testing showed a left L2-S2 radiculopathy with generalized polyneuropathy.

An orthopedic examination on 14 January 2004, 7 months before separation, noted back pain that radiated to the left leg without bowl or bladder incontinence.  Physical examination revealed paraspinal muscle tenderness.  Bilateral straight leg test (for radiculopathy into lower extremities) was negative.  Lower extremity motor strength was decreased to 5-/5 (slight) at the left ankle and was otherwise normal.  There was decreased sensation of the medial left foot with mild clonus (abnormal reflex).  The CI had difficulty with heel/toe walk.  The back range of motion (ROM) was flexion to 60 degrees (normal 90) and combined ROM could not be attained (no rotation measurements); painful motion was not addressed.  The 24 February 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of continuous back pain without lower extremity neuropathy or bowel/bladder incontinence.  Physical examination showed an even gait, steady but slightly guarded.  There was no spinal tenderness or muscle spasm and ROM was limited by pain.  All motor-sensory functions were within normal limits.  The formal ROM was performed by physical therapy on 27 January 2004, 7 months before separation, and was non-standard:  ROM was for separate lumbar (not thoracolumbar) and hip ROMs, used a bubble goniometer (subtracting L5 from L1) and performed in a seated position, and lumbar seated flexion was 10 degrees.

At the 4 June 2005 VA Compensation and Pension (C&P) evaluation, 10 months after separation, the CI reported constant back pain with numbness down his left leg to foot.  Physical examination showed lumbar flexion to 70 degrees; combined ROM was not attainable (no rotation measurements); painful motion was not clearly addressed.  No change in joint function with repetitive motion.  There was a sensory deficit over the left big toe.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10%, coded 5239 (spondylolisthesis or segmental instability), citing motion limited by pain.  The VA rated the back pain condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 10 months after separation, citing limitation of motion.

The panel considered that the MEB-PT ROM measurements were non-standard (rather than the goniometric thoracolumbar ROM specified by the VASRD [§4.71a, Plate V]), although they likely aligned with the more complete orthopedic examination.  The C&P examination was more remote from separation and therefore, the panel majority adjudged that the orthopedic examination had the highest probative value for rating at separation.  The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), corroborated by the orthopedic and MEB physical therapy examinations most proximate to separation.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).

The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported left leg and foot intermittent numbness; however clinical examinations most proximate to separation showed no evidence of neuropathy or radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  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 pain condition, coded 5239.

BOARD FINDINGS:  In the matter of the chronic subjective back pain condition, the panel majority recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  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 Subjective Back Pain	5239	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170016329, 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