RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01554
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Military Policeman, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  “Conditions are worsening and some conditions suffered were not considered. The eye condition was not considered.  I was told if I was examined by mental health during the MEB process, it would require me to be at the medical hold [battalion] for additional 6 months. Also, if I appealed to the board if could take at least a year.  Any further specialist appointments could take up to a month at Ft. Stewart, GA during this time.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040120	VARD - 20090622	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	10%	Degenerative Disc Disease, Lumbar Spine, with Left Radiculopathy	5237	20%	20041223	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with lower lumbar laminectomy in October 2000 with good recovery, but began to notice recurrent low back pain while deployed in June 2003 without specific trauma or injury.  Neurological examinations conducted in August 2003 by neurosurgery and orthopedics were normal.  An internal medicine examination later that month showed a normal gait and neurological examination.  Range of motion (ROM) testing showed a flexion of 100 degrees (normal 90).  Atrophy was absent and muscle tone was normal.  

During an orthopedic examination on 28 August 2003, 6 months prior to separation, the CI reported low back pain with some left lower extremity radiculopathy.  The examination showed no tenderness, a normal neurological examination and full, but painful, ROM.  At a physical therapy (PT) appointment a week later, the CI reported low back pain with occasional pain and tingling down his left leg.  A physical examination showed a normal gait and normal neurological examination.  The examiner reported full trunk active ROM.  Tenderness was present over the lumbosacral spine, but spasm was absent.  An MRI on 3 October 2003, showed disk bulges at L3-4 and L4-5 with nerve root encroachment at the latter.  

At a follow-up PT examination on 20 October 2003, 4 months prior to separation, the examiner recorded the CI’s strength, reflexes and ROM were normal.  An orthopedic examination the same day also noted a normal neurological examination and ROM.  During a Troop Medical Clinic appointment on 31 October 2003, the CI complained of persistent low back pain.  An injection the prior week had not been beneficial.  The examiner recorded the CI’s gait, station, tip toe, heel walking and hopping were all intact.  Flexion was reported at 90-95 degrees.  

At the 21 November 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported back pain with numbness and tingling in his left leg, foot, and toe.  The physical examination showed a flexion of approximately 90 degrees and extension of 15 degrees (normal 30).  The neurological examination was normal.  

A 1 December 2003 MEB NARSUM, 2 months prior to separation, noted complaints of lower back pain with pain down the left lower extremity into the foot.  The CI reported difficulty with ROM at times and with heavy lifting.  The physical examination showed a flexion of 95 degrees and extension of 15 degrees.  The neurological examination was normal.  At the family practice examination two weeks later, the CI’s flexion was 15 degrees and his extension was 10 degrees. However, the examiner also reported passive ROM measurements with a flexion of 95 degrees and an extension of 20 degrees.  

At the 23 December 2004 VA Compensation and Pension (C&P) evaluation, 10 months after separation, the CI reported constant lower back pain that radiated into his thoracic spine and also into his left lower extremity.  The physical examination showed an antalgic gait, favoring the CI’s left lower extremity.  The CI also had difficulty changing positions.  There was no tenderness recorded and the CI’s ROM measurements showed a flexion of 70 degrees and a combined ROM of 170 degrees (normal 240).  Repetitive use decreased the ROM measurements by 10 degrees. Radiographic studies where normal with no evidence of spondylolysis or spondylolisthesis.

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 no neurologic or electrodiagnostic abnormalities.  The VA rated the back condition 20%, coded 5237 (lumbosacral strain), based on the C&P examination 10 months after separation.  One family practice note documented an active flexion of 15 degrees while passive flexion was 95.  The VA examiner documented flexion of 70 with a further loss of 10 degrees after repetition.  Eight other examinations consistently showed the ROM was either normal or exceeded VA normal values.  Painful motion and tenderness were documented. Incapacitation was not.  These supported a 10% rating as adjudicated by the PEB.  The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI may have suffered additional 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.  The neurological examination was consistently normal and the PEB noted that electrodiagnostic testing was normal (not otherwise in evidence).  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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161018, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004011, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure