RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01580
BRANCH OF SERVICE:  aRMY 	SEPARATION DATE:  20040328

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Military Police, medically separated for “chronic back pain, due to degenerative disc disease” with a disability rating of 10%.  

CI CONTENTION:  “Chronic Back Pain, due to Degenerative Disc Disease.”  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 - 20040303	VARD - 20050203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Degenerative Disc Disease, L5-S1	5299-5243	20%	20040120	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2001 during self-defense training, with no specific injury or trauma.  Lumbar spine computerized tomography (CT) on 8 February 2002 showed minimal degenerative changes with a mild central broad-based disc bulge at L5-S1 and minimal anterior impression on the adjacent thecal sac.  On 22 February 2002, an MRI confirmed central herniation at L5-S1 with an annular tear, but without foramen (where nerves pass through the vertebral column) narrowing.  The CI was treated with duty limitations and conservative treatment but showed no improvement.  At an 18 April 2002 neurosurgery consult, surgery was not deemed necessary; however, the examiner noted a radiculopathy and recommended the CI get pain clinic treatment.  Electrodiagnostic studies of both lower extremities were normal on 14 May 2002, as was a bone scan on 20 June 2002.  

The CI was released from active duty in October 2002; however, her back pain worsened after she was recalled to active duty in 2003.  At a primary care appointment on 25 September 2003, 6 months prior to separation, she reported continuous back pain that had not improved with physical therapy, chiropractic treatment, or pain clinic intervention; only Motrin (nonsteroidal anti-inflammatory drug) and decreased activity helped the pain.  Physical examination revealed full range of motion (ROM) with some guarding and point tenderness over the L5-S1 area.  Lower extremity muscle strength, deep tendon reflexes, and sensation were normal.  A follow-up MRI on 7 October 2003, 5 months before separation, showed a degenerative disc with central protrusion of L5-S1 and minimal neural compression noted.   

During the 11 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months before separation, the CI reported pain aggravated by bending, jumping, lifting greater than 20 pounds, and standing or sitting longer than 15 minutes.  Physical examination showed back tenderness and pain with motion.  Thoracolumbar ROM measurements recorded active flexion to 90 degrees (normal), extension to 20 degrees (normal 30), and right/left lateral flexion to 25 degrees (normal 30).  Muscle spasm and guarding were not mentioned.

The 7 January 2004 MEB NARSUM examination, less than 3 months prior to separation, noted complaints of some discomfort with walking and that the CI held her back stiffly.  Physical examination showed diffuse tenderness and discomfort over the lumbar spine and sacroiliac areas.  There was pain in both hips over the sciatic distribution and mild flattening in the lumbosacral area.  The examiner recorded “forward flexion was to 90 degrees with discomfort, backwards 20 degrees, to right side 25 degrees, and to left 25 degrees.”

At the 20 January 2004 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported burning, sharp, cramping pain rated at 6/10 and aggravated by physical activity, but with no periods of incapacitation.  Physical examination showed a normal gait, but posture described by the examiner as “stooped.”  There was lower paravertebral muscle tenderness but no muscle spasm.  Straight leg raise testing (to determine nerve root irritation) was negative bilaterally.  Thoracolumbar ROM measurements showed flexion to 90 degrees and a combined ROM of 230 (normal 240), with painful motion.  The examiner reported no signs of intervertebral disc syndrome and no spinal ankylosis.  

The 4 February 2004 MEB NARSUM addendum, 2 months prior to separation, noted CI complaints of worsening back pain over the previous few weeks with increased spasm and tightness in the back.  Thoracolumbar ROM measurements (with goniometer) recorded active “forward flexion to 10 degrees easily, with marked spasm and tightness, then able to bend to 30 degrees with pushing.  No further functional range.  Backward flexion, could only go to 10 degrees; flexion to side in plane:  To right 10 degrees, to left 7 degrees; can twist upper body/shoulders 10 degrees to right and 15 degrees to left.”  The CI could heel-toe walk and was noted to be “markedly stiff and in discomfort” when moving from waiting room and walking back.
 
The 6 February 2004 MEB neurology addendum, 2 months before separation,  noted normal gait and posture, normal muscular strength, mildly increased sensitivity to pinprick in the feet, and brisk, equal and symmetric 3/4 deep tendon reflexes.  There was active resistance and guarding to 10 degrees of leg elevation bilaterally with localized pain and significant right lower lumbar area tenderness. There was no evidence of myelopathy, radiculopathy or peripheral neuropathy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (lumbosacral strain), citing thoracolumbar motion limited by pain with localized tenderness.  The VA rated the back condition 20%, coded 5299-5243 (intervertebral disc syndrome), based on the C&P examination 2 months before separation, citing pain which caused guarding and stiffness, and resulted in an abnormal gait or posture.  The VA noted one MEB evaluation showing a limitation of motion that would support a higher rating, but determined it “apparently represented an acute exacerbation,” adding that other evaluations showed limitations near the extremes of motion in all directions.  The panel deliberated over this ROM measurement (10 degrees with pain and to 30 degrees with pushing) recorded in the 4 February 2004 MEB addendum, and found no evidence of an intervening accident or injury or an absence of medication to explain the inconsistency with other examinations proximate to separation.  Members agreed the VA examination was more reflective of the CI’s level of severity based on clinical pathology and imaging findings, and agreed that preponderant probative value should be assigned to the VA ROM measurements.  While a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported in the VA examination, members agreed that the CI’s “stooped” posture as described by the examiner, was a sufficient basis for a 20% rating (for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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 5299-5237.  

BOARD FINDINGS:  In the matter of the chronic back pain, due to degenerative disc disease condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5237 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, Due to Degenerative Disc Disease	5299-5237	20%	

The following documentary evidence was considered:

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

AR20180001856, 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