RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00875
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Military Police, medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  The CI was given a higher rating by the VA.  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 - 20040129	VARD -20080228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Mild Degenerative Changes, Lumbar Spine	5243	10%	20080102	
COMBINED RATING:  0%	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’s low back pain began in 2000 following participation in a solders’ competition.  The back pain worsened through mid-July 2003 while deployed and he was medically evacuated from Iraq in August 2003.  Magnetic resonance imaging (MRI) of the lumbar spine in August 2003 showed degenerative disc disease and a mild central disc protrusion at L4/5 with no definite distortion of nerve root structures.  There was no listhesis and no stenosis.  There was no surgical indication.  

The 4 January 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of low back pain that varied from 3/10 to 7/10 pain level with all physical activity, including bending, twisting, and lifting.  Physical examination showed an antalgic gait with left leg limping.  Straight leg raising was negative for radicular symptoms.  There was lumbar area tenderness.  Range of motion (ROM) testing after 3 repetitions with a goniometer recorded forward flexion of 90 degrees (normal), and combined ROM of 230 degrees (normal 240) from the neurosurgery examination on 10 November 2003.  The examiner described some examination inconsistencies with heel walking variable foot drop without weakness on ankle dorsiflexion, and excellent spine mobility aside from extension.  The neurosurgeon stated “the only Waddell finding of possible nonorganic origin is the degree the discomfort from mechanical maneuvers which appears to be somewhat out of proportion to the physical findings and the imaging studies.  The neurosurgeon concluded that there were no objective neurological deficits, but there was a convincing low back limitation of motion because of pain.  

There was no VA examination in evidence proximate to separation.  However, the 2 January 2008 VA Compensation and Pension (C&P) evaluation, 4 years after separation, documented a normal gait and spinal contour with thoracolumbar spine spasms and painful motion to the VASRD normal limits.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 0%, coded 5237 (lumbosacral or cervical strain), citing no significant loss of spinal ROM.  The VA rated the low back pain 10%, coded 5243, (intervertebral disc syndrome), based on the C&P examination 4 years after separation, citing muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) and/or tenderness, reported on the NARSUM examination.  Although there was pain and an abnormal gait, it was too speculative to indicate that there was guarding severe enough to result in an abnormal gait, thus the next higher 20% rating was not justified on this basis.  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 10% for the low back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the low back condition, the panel unanimously recommends a disability rating of 10%, coded 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 Low back Pain	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160919, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017217, 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