RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01422
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040505

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Cannon Field Specialist, medically separated for “chronic back pain without neurologic abnormality” with a disability rating of 10%.  

CI CONTENTION:  Low back surgery in 2006 worsened his back, and VA rated left lower (leg) condition and surgical scars not addressed by the PEB.  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 - 20040318	VARD - 20050110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Neurologic Abnormality	5243	10%	L5, S1 Herniated Nucleus Pulposus, S/P …with Chronic Left S1 Radiculopathy and Altered Sensation and Muscle Weakness, and Chronic Low Back Pain	5243	10%	20041022	
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 back condition began in May 2003, following crawling and twisting movements as he worked on a tracked vehicle.  On 9 September 2003, he underwent a left L5-S1 discectomy for a herniated disc and back/left leg pain.  Despite post-surgery rehabilitation, the CI continued to have daily back pain.  

The 18 February 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of daily back pain.  Physical examination showed poor strength in the lower extremities bilaterally with the left slightly worse than the right; heel-to-toe walking was difficult due to poor balance.  Patellar deep tendon reflexes were absent on the left and normal on the right lower extremity, and there was pain on palpation in the lumbar paraspinal area, with mild swelling noted.  There was mild lumbar pain with bilateral leg lifts to approximately 30 degrees and pain with range of motion (ROM) movements.  The CI was able to fully rotate both hips, but with pain in the lumbar region.  Physical therapy (PT) ROM measurements the same day were (in degrees):  lumbar flexion to 35 (normal 90), extension to 10 (normal 30), left lateral flexion to 10 with pain (normal 30), and right lateral flexion to 15 without pain.  Gait was within normal limits with pain during squatting and hip movements.  

At the 22 October 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported his back pain was essentially unchanged since surgery but that he lost no work due to flares or back pain.  He also endorsed leg pain, weakness and loss of endurance increased with repetitive use, but that he did not experience loss in ROM.  Physical examination showed a normal, balanced gait and even stride with ascending and descending motions causing no difficulty.  Flexion was to 80 degrees with a combined of 230 degrees (normal 240) and painful motion.  There was tenderness without spasm.  Lumbar spine X-rays revealed post-surgical changes at L5-S1 with evidence of degenerative disc disease.  Later VA treatment entries also noted an 11 January 2005 MRI, 8 months after separation, showing lumbar foraminal stenosis and spurring compressing the L5-S1 root.  The CI subsequently received an epidural steroid injection for back and radicular pain, and then underwent additional lumbar surgery on 24 January 2006 (21 months after separation).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing thoracolumbar ROM limited by pain, with localized tenderness (likely application of AR 635-40, B-29, rating for mechanical loss or motion only).  The VA rated the back condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 5 months after separation, citing thoracolumbar forward flexion greater than 60 degrees but not greater than 85 degrees.  A VA Decision Review Officer rating on 29 March 2007, included additional post-separation medical records and examinations, and retroactively increased the back rating to 20%, citing the 20% criteria.  The panel deliberated on the probative value of the disparate examinations in evidence, and although the PT examination stated “lumbar” verses “thoracolumbar” ROM, the guidance at the time was for thoracolumbar measurement and forward flexion is principally from the lumbar spine segments.  The PT examination was therefore accorded higher probative value for rating at separation.  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 on the PT examination on 18 February 2004.  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 recommends a disability rating of 20% for the back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  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 Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161011, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180001587, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure