RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00697
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized National Guard, E4, Motor Transport Operator, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  Back, hand, and eye conditions were 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 - 20040127	VARD - 20040712	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease (DDD) Lumbar Spine	5010-5237	10%	20040617	
Benign Essential Tremor	Not Unfitting	Benign Essential Tremor	8199-8103	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a back surgery (L3-L4 laminectomy) performed in 1991 with full recovery.  The CI was in the National Guard from 1984-1991 and reenlisted with a medical waiver in February 2002.  He was activated and deployed to Iraq from June to October 2003.  Limited records indicated recurrence of LBP with radiation after heavy lifting in August 2003.  Radiographic (X-ray) studies in October 2003 showed evidence of degenerative disc disease of L5-S1.  

At a September 2003 orthopedic visit, the CI reported LBP radiating to the posterior legs.  Physical examination showed midline tenderness at L3-L5 vertebral levels, with normal gait, strength, and sensation.  Range of motion (ROM) measurements showed a forward flexion of 50 degrees (normal 90).  Painful motion was not addressed.  

At a 16 October 2003 orthopedic visit, physical examination showed a “slow” gait and “rigid” posture.  There was tenderness throughout the lumbosacral spine with forward flexion “to [the] knees.”  Strength and sensation were normal.  X-ray studies on 17 October 2003 and a magnetic resonance imaging on 12 December 2003, showed DDD and herniation at the L5-S1 vertebral level with some contact with the right S1 nerve root.  

The 10 December 2003 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant LBP aggravated by repeated bending, heavy lifting, sitting more than 10 minutes in a military truck or walking at his own pace and distance for more than 30 minutes.  Physical examination showed tenderness at the lumbosacral junction with no palpable spasm or visual deformity.  The ROM measurements showed flexion of 60 degrees (normal 90) with pain after repetition.  Strength was normal with decreased sensation consistent with right S1 nerve root dysfunction.  

At a 5 March 2004 orthopedic visit, 5 days after separation, physical examination showed the CI could forward flexion with his fingers to just below his knees (approximately 60-65 degrees) with an increase in back pain.  There was tenderness on midline lumbosacral palpation and pain with extension.  

At the 17 June 2004 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported continued LBP with radiation to the right posterior knee.  He reported the use of a back brace during his normal duties/daily activities, occasional flare-ups with activity, and occasional right leg numbness.  He was able to walk a mile and sit in one position for up to 30 minutes.  Physical examination showed a normal posture and gait with lower lumbar muscle spasm (right greater than left).  Measurements showed forward flexion of 80 degrees with pain, and a total combined ROM of 220 degrees (normal 240).  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the LBP condition, coded 5237 (lumbar spine strain), citing paraspinous tenderness with no spasm, no significant loss of ROM, and intermittent radiculitis.  The VA also rated 10% for the LBP condition, coded 5010-5237 (traumatic arthritis- lumbosacral strain), based on the C&P examination 4 months after separation citing limitation of forward flexion greater than 60 degrees but not greater than 85 degrees.  

There was consistent STR evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees to support a 20% rating.  There was no other evidence of spasm or guarding severe enough to result in an abnormal gait.  There was no STR documentation of ankylosis or thoracolumbar flexion to 30 degrees to warrant a higher rating under that formula.  There was no documentation of periods of incapacitating episodes which would provide for a higher rating under that formula.  There was no evidence in this case that motor weakness or sensory impairment existed to any degree that could be described as functionally impairing; and therefore, no evidence for an additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the chronic LBP condition, coded 5242 (degenerative arthritis of the spine).  

Contended PEB Condition:  Benign Essential Tremor.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic LBP condition, the panel majority recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  In the matter of the contended benign essential tremor condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel majority 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 Low Back Pain	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160916, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170016866, 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