RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01533
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040303

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Heavy Construction Equipment Operator, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  Additional unfitting conditions were not considered.  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 -20031223	VARD - 20040322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	Degenerative Disc Disease	5010-5242	20%	20040501	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain began in November 2002 following a road march.  Subsequent X-rays were normal, but an MRI showed degenerative disc disease with a small left paracentral disk protrusion at L5-S1, potentially affecting the left S1 nerve root; and spinal canal stenosis at L4-L5 secondary to disk bulge and osteoarthrosis.  Electrodiagnostic studies showed no evidence of radiculopathy or peripheral neuropathy.

The 21 November 2003 MEB NARSUM examination, 4 months prior to separation, noted complaints of low back pain with chronic intermittent radicular-type pain.  Epidural injections were not successful.  Physical examination showed lumbar spine tenderness with decreased range of motion (ROM) on flexion and extension.  Maneuvers to elicit nerve tension signs were negative, and bilateral lower extremity strength and deep tendon reflexes were normal.  During an 11 December 2003 MEB physical therapy examination, 3 months before separation, forward flexion was documented to 35 degrees (normal 90) with a combined ROM of 155 degrees (normal 240); painful motion was not addressed.

At the 19 April 2004 VA neurology appointment, 1 month after separation, the CI reported intermittent numbness and pain down his left leg and denied any bowel/bladder problems.  Physical examination showed a stable gait with good toe and heel walking.  Mild lumbar midline tenderness was noted and muscle strength was 4+-5 /5.  Sensation was intact and reflexes were symmetrical.  ROM was not addressed.  On 23 April 2004, a lumbar MRI showed a broad-based left paracentral disc protrusion at L5-S1 causing displacement and probable compression of the left S1 nerve root and central canal stenosis at L4-5. 

At the 1 May 2004 VA Compensation and Pension (C&P) general evaluation, 2 months after separation, the CI complained of chronic back pain with periodic flare-ups that occurred 3-4 times per week lasting a few minutes to several hours.  The CI also reported left lower extremity radiating pain and tingling to the sole of the foot.  No bowel or bladder concerns were detailed.  Physical examination showed a normal gait and the ability to heel and toe walk.  Spinal alignment was normal with tenderness and muscle spasm.  Repetitive lumbar spine ROM was flexion to 65 degrees, but combined ROM was incomplete and painful motion was not addressed.  Deep tendon reflexes were 2+ with motor strength graded 5/5 in all extremities.  The 10 May 2004 VA neurosurgical evaluation showed a normal gait and neurological examination.  No surgery was recommended at the time due to the intermittent nature of the radicular symptoms.  

At the 23 June 2004 C&P spine examination, 4 months after separation, the CI reported low back pain with intermittent radiating pain down the left leg, knee and foot that occurred 1-2 times per week and lasted for a few seconds.  Physical examination showed a normal gait and spinal curvature with tenderness but without muscle spasm.  Thoracolumbar ROM was flexion to 60 degrees and combined ROM was 160 degrees, with painful motion.  Lower extremity strength, sensation, and reflexes were normal.  There had been no incapacitating episodes during the past 12 months.  The 23 June 2004 C&P neurological disorders examination, 4 months after separation, was normal and the examiner indicated the CI had back pain but no radiculopathy.

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).  The VA rated the back condition 20%, coded 5010-5242 (arthritis due to trauma-degenerative arthritis of the spine), based on the C&P evaluation 4 months after separation, citing limitation of motion.  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) and/or combined ROM not greater than 120 degrees), as reported on the MEB physical therapy evaluation, 3 months before separation, and the C&P spine examination, 4 months after separation.  The panel agreed the evidence supports that the CI’s thoracolumbar ROM was frequently 60 degrees or less and the overall disability due to the back condition was more nearly approximated by the 20% rating than the 10% rating criteria.  Although the CI did have evidence of intervertebral disc syndrome, there was no evidence of incapacitating episodes requiring physician-prescribed bed to warrant consideration of rating under that formula.  The panel also considered an additional rating for radiculopathy.  While the CI may have suffered additional radicular pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  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 chronic back pain 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 20160928, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180001652, 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.

Sincerely,					      
Enclosure