RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00011
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Light-Wheel Vehicle Mechanic, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The condition was under-rated.  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 - 20040820	VARD - 20050323	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	HNP with Degenerative Disc Disease and Radiculopathy	5243	40%	20050113	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in June 2001 after falling off a tactical vehicle.  An MRI study showed bulging discs at L4-5 and L5-S1 without cord or nerve root impingement.  Surgery was not recommended by neurosurgery.  On 21 October 2002, in primary care, the CI was noted to have normal range of motion (ROM).  

At the 11 January 2003 VA Compensation and Pension (C&P) evaluation, 20 months before separation, the CI reported significant pain shooting down his legs as he ambulated.  The physical examination showed normal spinal curvature with a somewhat guarded gait.  There was tenderness, but no spasm.  ROM testing documented forward flexion as the ability to reach the finger tips to within 33 cm (12.99 inches) of the floor.  [Although this measurement is not goniometric, fingers reaching to within 12-16 inches of the floor is approximately equivalent to 65 – 80 degrees of flexion.]  There was painful motion.  Straight leg raise testing was positive on the left at 40 degrees and on the right at 50 degrees.  X-rays of the lumbar spine showed minimal narrowing of the disc spaces at L3-4, L4-5 and L5-S1.  

At the orthopedics examination on 13 May 2003, the CI had a steady gait and was able to heel-toe walk.  Motor function was normal.  He was diffusely tender over the lumbar area, but without spasm.  Flexion was to the mid-shins [greater than 60 degrees].  Extension was 50% of normal.  Three of six signs of non-organic pain were present.  

The MEB NARSUM examination dated 30 September 2003, 11 months prior to separation, noted complaints of chronic pain.  The physical examination showed thoracolumbar ROM measurements of flexion of 45 degrees (normal 90), lateral bending of 10 degrees left and right (normal 30), and extension was 0 degrees (normal 30).  Provocative testing for nerve root irritation was negative, but showed extensive back pain at 60 degrees.  The 25 November 2003 MEB examination (recorded on DD Form 2808) showed painful flexion and extension, but no measurements were provided.  An MRI of the lumbosacral spine on 31 December 2003 showed a tear at L4-5 and some narrowing of the right nerve root space at L5-S1 secondary to a protruding disc.  

The NARSUM was updated on 27 February 2004, 7 months prior to separation.  On examination, the CI walked very “slowly with much groaning and complaints of pain and a lot of sighing.”  However, he could walk on his heels and toes.  Flexion was 20 degrees.  Extension was 20 degrees and lateral bending 10 degrees bilaterally.  All movements were painful.  Four signs of non-organic pain were present.  Tenderness was present, but spasm was not recorded.  

At the VA C&P evaluation performed on 13 January 2005, 4 months after separation, the CI reported constant severe pain and flare-ups with walking, especially uphill.  The physical examination showed tenderness, muscle spasms, and mild lumbar flattening.  The examiner was unable to perform thoracolumbar ROM activities beyond 5-10 degrees due to severe back pain, and radiation of pain.  

The panel noted the significant discrepancy between the initial VA and NARSUM examinations and those obtained closer to separation.  No additional trauma was recorded to explain the increased impairment reported by the CI.  The panel observed that information remote from separation indicated a higher level of occupational activity after separation than would be expected based on the examinations proximate to separation.  On an application for social security disability dated 1 February 2010, the CI recorded that he worked in the military until May 2005.  He then worked as a building maintenance manager in 2006 through 2007 (months not specified) and a cable technician from May 2007 until July 2008.  At an occupational health evaluation dated 11 November 2008 the CI related “all of his ongoing low back and right leg problems to an injury in February 2008 when he fell and landed on a meter.”  Further in the same report he stated that “he has had no other major injuries other than a softball injury that fractured his jaw.”  It also noted that in his job installing cables he had to run lines from poles into homes.  It was also noted that his job in building maintenance ended when he was laid off.  

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 (IVDS)), citing tenderness and marked limitation of spinal motion due to pain alone (no mechanical cause).  The VA rated the back condition 40%, coded 5243 based on the C&P examination 4 months after separation. 

The limitation of lumbar flexion (greater than 30 degrees) reported in the initial VA C&P and the initial MEB NARSUM suggested consideration of the next higher rating of 20%.  The panel also noted that at the time of the initial injury, the CI was observed to have minimal problems (slight limp) when he was not aware that he was observed, but significant impairment around others.  Multiple evaluators in different specialties observed that the symptoms and findings appeared to be exaggerated and signs of non-organic pain were also observed on multiple occasions.  Following separation, the CI was able to return to work in building maintenance and installing cables.  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 initial MEB and VA examinations.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD 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 low back 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 Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151004, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002695, 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