RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX 	CASE:  PD-2016-00933
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E6, Military Police, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  “An initial review of military record by the VA had determined a 40% rating for the original issues.”  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 - 20040901	VARD - 20050223	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with a History of a Lifting Injury…Left Leg…	5299-5237	10%	Left S1 Nerve Root Irritation	5243	10%	20050223	
Cervical Spine Pain associated with Degenerative Disc Disease and Osteonecrosis	Not Unfitting	Cervical Spine DDD	5242	10%	20050223	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain (LBP) condition began in 1995 after loading a truck, and in 2000, developed pain radiating down his left leg to his heel.  The CI attended physical therapy (PT) without benefit and received epidural steroid injections with only transient relief.  Serial magnetic resonance imagining (MRI) scans of the lumbar spine from November 2002, January 2003, and January 2004 were reported as normal.  In April 2004 neurosurgical evaluation performed documented leg pain in the sciatic nerve distribution associated with sensory and muscular abnormalities.  There was no evidence of spinal disc disease or lesion of the lumbar nerve plexus.  No specific cause for the nerve irritation was found.  At the 22 July 2004 MEB NARSUM examination, 5 months prior to separation, the CI’s chief complaint was listed as back, neck, and left leg pain.  His physical examination (PE) revealed a left-sided favored antalgic gait.  Para-spinal muscle tenderness was present as well as sensory deficits to light touch about the lumbosacral spine.  “Motor strength was normal except in the left lower front and perineal nerves”; no further description of weakness was documented.  Thoracolumbar range of motion (ROM) was minimally decreased in extension at 20 degrees (normal 30) and left lateral flexion at 25 degrees (normal 30).  All other directional components of ROM were normal for a combined range of 225 degrees (normal 240).  

At the 9 November 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI maintained the ability to walk at least one mile without difficulty and undertake activities of daily living.  He endorsed the inability to perform vigorous physical fitness training.  His physical examination revealed a normal gait.  There was decreased ROM noting lumbar flexion to 40 degrees (normal 90), extension to 10 degrees, and right rotation to 25 degrees (normal 30) for a combined ROM of 165 degrees.  The CI’s lower extremity strength was normal and patchy sensory loss was present in his left lower extremity.  He maintained the ability to walk on his toes, heels, and perform a tandem gait. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition at 10%, analogously coded 5299-5237 (lumbosacral or cervical strain); whereas the VA rated the chronic low back condition at 10%, coded 5243 (intervertebral disc syndrome) based on the C&P examination 1 month before separation, citing low back pain and left leg sensory loss.  The VARD recorded there was not enough objective medical evidence to warrant two separate evaluations for the low back and for the left leg.

All panel members agreed that the VA examination garnered the greatest degree of probative value due to its close time reference to separation and therefore a 20% rating was justified for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  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 low back condition, coded 5242.     

Contended PEB Condition:  Cervical Spine Pain associated with Degenerative Disc Disease and Osteonecrosis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the cervical spine pain condition was not unfitting.  The commander’s performance statement dated 12 July 2004, 4 months before separation, noted the CI was unable to take the APFT due to medical problems with his back, and that the CI might have considerable difficulties performing general soldier duties requiring wearing a helmet and flak vest.  That same month, the CI was profiled for neck pain, in addition to mechanical LBP.

According to the STR and the MEB NARSUM, the CI’s cervical spine pain condition began in 2002 after a deployment where he was required to wear a helmet and flak jacket many hours per day.  A cervical spine series from 8 June 2004 revealed moderate to severe degenerative disc disease (DDD) limited to the C5/6 level.  The 7 July 2004 MRI revealed degeneration of C4/5 and C5/6 vertebrae with minimal constriction of nerve-exiting canals.  His PE revealed painful motion throughout the normal range of cervical flexion and extension.  His VA evaluation at 1 month prior to separation revealed mild tenderness about the muscle mass along the cervical spine.  Cervical ROM was decreased at 35 degrees flexion, extension at 35 degrees, right lateral flexion at 40 degrees, and left lateral flexion at 35 degrees, (all normal = 45).  The neurovascular status of each upper extremity was intact. 

The panel directed attention to its recommendation based on the above evidence.  The VA rated the cervical spine pain condition at 10%, coded 5242 (degenerative arthritis) based on the C&P examination 1 month before separation, citing pain with motion and tenderness.  The panel deliberated and concluded that there was no performance-based evidence from the totality of the record that the cervical spine condition independently and or significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that 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 and IAW VASRD §4.71a, the panel unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended cervical spine pain condition, the panel unanimously agrees it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  The panel 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 20160919, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017369, 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