RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01048
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040726

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Multichannel Transmission Systems Operator/Maintainer, medically separated for “chronic back pain with L5-S1 herniated nucleus pulposus” with a disability rating of 10%.  

CI CONTENTION:  “Conditions have worsened.”  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 - 20040514	VARD - 20041115	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with L5-S1 Herniated Nucleus Pulposus	5243	10%	Degenerative Disc Disease Lumbar Spine	5243	10%*	20040708	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	
*VARD 20060206 increased rating to 20% effective DOS

ANALYSIS SUMMARY:  

Chronic Back Pain with L5-S1 Herniated Nucleus Pulposus.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain initially began in 1995 after a fall while playing basketball, at which time he also fractured his wrist.  He did not seek treatment for his back at that time.  Subsequently, his back pain became progressively worse, and a 12 February 2003 treatment entry noted complaints of lower back pain.  Chiropractic treatment began in April 2003.  Magnetic resonance imaging (MRI) in September 2003 revealed degenerative disc changes at the L5-S1 level with a moderate size central disc extrusion touching both of the S-1 nerve roots, slightly greater on the right.  
Chiropractic treatment continued through November 2003 when the CI was referred to physical medicine and rehabilitation for epidural steroid injections (ESI).  Follow-up evaluation on 11 December 2003 revealed tenderness diffusely over the lower lumbar segment particularly from L2-S1.  Range of motion (ROM) was somewhat limited and painful.  Straight leg raise (SLR) testing to determine nerve root irritation, along with other provocative tests caused low back pain with radicular symptoms.  Neurologic evaluation was unremarkable and gait and station appeared normal.  On 5 February 2004, he received L5-S1 and caudal (sacrum/tailbone) ESIs.

During the 10 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported low back pain.  Physical examination showed tenderness from L4-S1, a positive SLR and forward flexion from 5-85 degrees (normal 0-90).  The 12 February 2004 physical therapy (PT) ROM evaluation for the MEB recorded flexion to 50 degrees and extension to 10 degrees (normal 30), both after repetition.  The therapist noted the CI appeared to be in a great deal of pain, and stood in a bent position with guarded movements.  

The 9 March 2004 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of a long history of progressively worsening back and left leg pain.  He had no relief from ESIs or a nerve root block, and declined surgical intervention.  Physical examination showed a positive left SLR, but otherwise he was neurologically intact.  At a 13 May 2004 PT visit, flexion was to 70 degrees with a combined ROM of 190 degrees (normal 240), with limitation due to pain.  

At the 8 July 2004 VA Compensation and Pension (C&P) evaluation, less than 1 month before separation, the CI reported a constant dull ache of the lower back and increased discomfort with prolonged standing, walking, bending, lifting and running.  The CI also had pain radiating from the back into the left leg and foot.  Physical examination showed symmetrical back musculature with good strength and muscle tone.  There was no tenderness and ROM was flexion to 45 degrees with pain and a combined ROM of 195 degrees.  Some loss of lower lumbar lordosis was noted, but without muscle spasm or guarding; gait was normal.  Neurologic evaluation was unremarkable.  A 26 September 2005 MRI, 14 months after separation, demonstrated a small midline herniated disk at L5‑S1 with no stenosis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10%, coded 5243 (intervertebral disc syndrome), citing combined thoracolumbar ROM of 225 degrees.  The VA initially rated the back condition 10%, but increased the rating to 20%, coded 5243, based on the C&P examination less than 1 month before separation, after acknowledging incorrect ROM values and citing flexion greater than 30 degrees but not greater than 60 degrees.  The panel majority determined that the C&P evaluation was the most proximate to separation and of higher probative value; and that a 20% rating, but no higher, was justified for limitation of motion, with a thoracolumbar ROM to 45 degrees of flexion recorded.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD 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 chronic back pain condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  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 Back Pain with L5-S1 Herniated Nucleus Pulposus	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160926, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

Minority Opinion.  Although the VA examination was more proximate to separation, there was no evidence of an accident, injury or other explanation for the flexion decrement to 45 degrees from a prior measurement of 70 degrees, which was the lowest of all other measurements of flexion prior to separation.  All other ROMs at the VA evaluation were normal, there was symmetrical back musculature with good strength and muscle tone, no tenderness to palpation, no muscle spasm or guarding, a normal gait, and an unremarkable neurologic evaluation.  Thus, it is hard to correlate a flexion of 45 degrees with those findings.  The next closest ROM measurement to separation for flexion was 70 degrees, on which the PEB based its rating.  This comports with a 10% rating that requires forward flexion of the thoracic spine greater than 60 degrees, but not greater than 85 degrees.  Furthermore, that examination was more complete than the prior PT ROM measurements solely for flexion and extension rather than the full spectrum of motions necessary to determine a combined ROM.  Additionally, there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  The question is whether the PEB correctly assigned a 10% rating based on its best information at the time of the adjudication.  In this specific case, the minority voter believes that the PEB properly adjudicated the rating, and although the VA examination noted a flexion of 45 degrees, the etiology for the decrease of 25 degrees from a prior examination remains enigmatic in the absence of a documented accident, injury, or medication modification or omission.  Therefore, the minority voter recommends the ROP be modified as follows:

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

And

In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

AR20170018925, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,	
Enclosure