RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00818
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040815

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

CI CONTENTION:  “Since my discharge in 2004 I have been through 2 spine surgeries and have recently been deemed unemployable.”  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 - 20040524	VARD - 20040909	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain without Neurologic Abnormality	5299-5242	10%	DDD and Herniated Nucleus Pulposus, L4-L5 and L5-S1 with Radiculopathy	5242	40%	20040625	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in January 2003 after striking his back on a tow hook while lifting a water bladder.  An MRI on 3 February 2003 revealed a small L4-L5 disc herniation and small bulge at the L5-S1 level without nerve root or cord impingement.  On 6 March 2003 he was evaluated by physical therapy and was noted to have normal flexion, but reduced extension.  The gait was slow, but the neurological evaluation normal.  Three days later in orthopedics, flexion was reduced to 40 degrees (normal is 90).  No explanation for the reduction was cited, but it was noted that the CI had decided he wanted out of the service.  Two weeks later in primary care, he reported pain radiating to both sides and tingling in both legs.  The next day in physical therapy, two signs of non-organic pain were present.  

Electrodiagnostic (EDX) testing on 23 April 2003 was normal.  The same day in physical medicine, the CI reported that his right leg gave out.  On examination, the strength was normal, but the range of motion (ROM) reduced in all planes due to pain.  His symptoms were thought to be due to the disc disease as well as poor core conditioning.  The CI underwent a series of epidural steroid injections (ESI) which were of no benefit.  In orthopedics on 9 December 2003, the CI was evaluated and found to have flexion of 40 degrees and extension of 20 degrees (normal 30).  In physical therapy on 3 February 2004, the gait was normal but his posture poor.  

During the 8 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months before separation, there was mild spinal tenderness and marked muscle spasm.  Provocative testing for nerve root irritation was negative and the neurological examination was normal.  There was a marked decrease in ROM.  Gait, posture and painful motion were not addressed.  

At the 26 March 2004 MEB NARSUM examination, 5 months before separation, the CI reported low back pain with radiation to the upper back and bilateral hips and occasional numbness to the back of his right thigh.  The examiner referenced the aforementioned MEB examination.  The CI was seen on 2 May 2004 in physical therapy for a ROM study.  Flexion was 45 degrees and total combined thoracolumbar ROM was 145 degrees (normal 240) and limited by pain.  

At the 25 June 2004 VA Compensation and Pension (C&P) evaluation, 2 months prior to separation, the CI reported constant low back pain with radiation to both legs, but noted that his pain was less than initially.  A total of 6 days of incapacitation over the prior 6 months was reported.  The physical examination showed a limp favoring the right leg with a straightened posture and spinal tenderness.  Flexion was limited to 30 degrees and combined ROM was 80 degrees.  His ROM was “painful to any and all movements.”  Tenderness was present, but neither guarding nor spasm were recorded. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing no neurological abnormality with ROM limited by pain.  The VA rated the back condition 40%, coded 5242, based on the C&P examination 3 month before separation, citing limitation of forward flexion of 30 degrees or less.  

The panel deliberated on the probative value of the disparate examinations in evidence and judged that the C&P examination, 2 months before separation, which recorded flexion to 30 degrees, was an outlier and not consistent with the preponderance of ROM evidence found in the STR.  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 by the physical therapy, MEB and other STR ROM examinations before separation.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula. 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 5242.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5242 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 Subjective Back Pain	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170018004, 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