RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01630
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Licensed Practical Nurse, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  Review all conditions.  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 - 20040708	VARD - 20040215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Degenerative Joint Disease (DJD) Lumbosacral Spine	5299-5292	10%	20030601	
Thoracic Degenerative Disc Disease	Not Unfitting					
Left Hip DJD	Not Unfitting	Avascular Necrosis, Left Hip	5099-5010 	NSC	20030601	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in April 2000 after a fall.  X-rays were normal, but MRI revealed a broad-based disc bulge at L4-5 without stenosis or foraminal narrowing and a disc bulge at L5-S1 causing mild foraminal narrowing without stenosis.  Surgery was not recommended.  The CI was sent for MEB, but it was stopped due to issues regarding the line-of-duty (LOD) determination for his back.  On 3 October 2003, the LOD for his back condition was approved and his MEB was restarted.
At the 1 June 2003 VA Compensation and Pension (C&P) examination, 16 months before separation, the CI reported constant back pain that radiated down the left leg to the heel.  He also complained of left heel numbness.  Physical examination showed normal posture, but the gait showed a limp to the left.  Muscle spasm and tenderness were present.  There was no radiation of pain on movement or evidence of radiculopathy, but straight leg raise testing was 15 degrees bilaterally.  The range of motion (ROM) evaluation showed flexion of 65 degrees (normal 90) and combined ROM of 175 degrees (normal 240).

At the 3 December 2003 VA C&P examination, 10 months before separation, the CI reported constant sharp aching 6/10 back pain elicited by physical activity.  Physical examination showed normal posture and no muscle spasms, but the CI did have a slightly left antalgic gait and there was tenderness.  Straight leg raise testing was positive on the right at 45 degrees and on the left at 20 degrees.  However, the examiner noted “a high degree of feigning of symptoms” with “grunting, grimacing and groaning…that [seemed] out of proportion to his actual problem.  This [was] not only with straight leg raising, but also with the ROM movements.”  The ROM evaluation showed flexion of 60 degrees and combined ROM of 210 degrees with pain limited motion.  The ROM was not additionally limited by fatigue, weakness, lack of endurance or incoordination.  There was no radiation of pain on movement and motor strength and reflexes were within normal limits; however, there was decreased pinprick sensation on the left side of the thigh, leg and foot.

The 23 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808) and MEB NARSUM, 7 months prior to separation, were conducted on the same day by the same physician.  The CI reported degenerative disc disease (DDD) from L2-4 with frequent heel numbness.  Physical examination showed a normal appearing spine without step-off or deviation, but there was tenderness.  The ROM evaluation was conducted by physical therapy and showed, after repetition, thoracic flexion of 15 degrees (normal 30) and lumbar flexion of 30 degrees (normal 60) for a total thoracolumbar flexion of 45 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral spine strain), citing painful motion and tenderness.  The VA also rated the back condition 10%, analogously coded 5299-5292 (limited motion of the lumbar spine), based on the 3 December 2003 C&P examination, citing painful or limited motion of a major joint or group of minor joints.  The panel considered the not-unfitting thoracic DDD and agreed it was part and parcel of the unfitting back condition and not separately ratable.  

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 examinations proximate to separation.  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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5242.  

Contended PEB Condition:  Left Hip DJD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or judged to fail retention standards.  Although it was implicated in the commander’s statement, there was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended left hip condition, the panel recommends no change from the PEB determination as not unfitting.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180012731, 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