RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00978
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041229

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

CI CONTENTION:  “Review all conditions.”  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 - 20041117	VARD - 20050131	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain	5299-5237	10%	Mid/Low Back Sprain	5299-5237	10%	STR	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%		
Asthma		No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Subjective Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2003 without specific injury or trauma but with re-injury in March 2004 in a slip and fall on steps.  At the orthopedic appointment on 22 December 2003 forward flexion was 90 degrees, extension was 20 degrees and right and left side bending were 20 degrees.  At the orthopedic follow-up on 14 January 2004 the CI was very tender over the mid-thoracic spine and paraspinal muscles.  The examiner noted there was resistance with flexion and increased pain in the back.  Radiographic and MRI studies were normal.  

The 26 May 2004 clinical evaluation indicated that active range of motion (ROM) was significantly decreased and improved some with passive ROM.  There was no paraspinal tenderness and strength was normal.  The examiner noted the subjective complaints were greater than objective findings.  The 15 July 2004 clinical encounter followed a re-injury with increased pain after a road march and injected medication was given.  

During the 24 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported recurrent back pain.  The physical examination showed mild scoliosis.  The 27 September 2004 physical therapy (PT) examination recorded “Pnt presents to clinic for lumbar ROM measurements for MEB.”  Measurements were listed in degrees as active ROM/Passive ROM.  Active flexion was to 50, extension was 15, right lateral flexion of 30, left lateral flexion of 25, right rotation of 50, and left rotation of 55.  The examiner stated the CI “actively resists further passive range of motion.  The examination was positive for cervical compression, positive Waddell sign, simulated rotation seated leg raise versus supine superficial tenderness."  

The 24 August 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of back pain.  The examiner relayed the above PT as "Flexion 50 out of 50, extension 15 out of 20, right lateral flexion 30 out of 35, left lateral flexion 25 out of 30, right rotation 50 out of 50 and left rotation 55 out of 60.  …The patient actively resists further passive range of motion.  The examination was positive for cervical compression, positive Waddell sign, simulated rotation seated leg raise versus supine superficial tenderness."  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing ROM limited by pain (with likely application of the US Army Physical Disability Agency pain policy, or AR 635-40, B-29).  The VA rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), based on the STR citing the NARSUM’s passive ROM 50 out of 50 degrees and other ROM values.  

The source PT examination showed active lumbar ROM of 50 degrees over passive ROM of 50 degrees and did not list normal values as misquoted (“flexion 50 out of 50”) in the NARSUM.  There was no ROM table heading, and no listing of the examiner’s normal ROM values.  The panel deliberated if the source PT ROMs were thoracolumbar ROMs or lumbar-only ROMs.  The panel considered the HQ Army Training Circular 8-640, Joint Motion Measurement, in effect at the time which states that lumbar spine “rotation, though present, is very limited.”  Given the reported rotation measurements of 50 and 55 degrees, even with indications of non-physiologic findings, it was unclear if the ROMs were for isolated lumbar spine ROM or thoracolumbar spine ROM.   The panel consensus was that ROMs were most likely for the thoracolumbar spine.  The panel consensus was 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 on the PT MEB examination.  There was no documentation of intervertebral disc syndrome 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 majority recommends a disability rating of 20% for the back condition, analogously coded 5299-5237.  

Contended PEB Conditions:  Migraine Headaches and Asthma.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The migraine headaches was profiled but not implicated in the commander’s statement or judged to fail retention standards.  The asthma condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the migraine or asthma conditions 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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, analogously coded 5299-5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change and elected not to submit a minority opinion.  In the matter of the contended migraine headaches and asthma conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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 Subjective Back Pain	5299-5237	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

AR20170018913, 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