RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00016
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Chaplain’s Assistant, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that his rating should be changed because of the “severity of [his] back condition and secondary hip 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 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 FPEB - 20040524	VARD - 20040810	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	10%	L5-S1 Degenerative Disc Disease	5243	60%	20040607	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in May 2001 after the CI was involved in tactical vehicle accident.  The accident was noted on a line of duty determination, but there were no records in evidence from the event itself.  An MRI study showed a herniated disc at L5-S1.  A follow-up MRI reported multi-level degenerative disc disease with small herniations at L3-4 and L5-S1.  

At neurology on 7 July 2003, the CI reported that he had gained a great deal of weight and now weighed 250 pounds.  [His accession physical in October 2000 noted he weighed 251 pounds.]  On examination, he had a marked antalgic gait (abnormal due to pain) and was in distress.  It was difficult to remove his left shoe.  He could not walk on his heels or on his toes.  Bending was restricted, but not quantified.  Sensation was mildly reduced in the left L5 and S1 dermatomes.  Strength was normal.  On 21 July 2003, electrodiagnostic studies showed evidence of denervation involving L3-L4.  There was also evidence of lumbosacral radiculitis in the L5 and S1 distribution appearing to be due to irritation.  

The 4 September 2003 MEB examination (DD Form 2807-1 and DD Form 2808) noted the CI had problems with walking and lifting.  Provocative testing for nerve root irritation was positive at 70-80 degrees on the right (normal), but the CI was unable to undergo testing on the left (no further details recorded).  On examination, pain was present in the lumbar area on palpation.  Increased reflexes were noted.  No other pathology of the back was recorded.  On 8 September 2003, the commander noted that the CI was a dedicated hard worker who could fulfil his chaplain assistant duties in garrison, but not in a field environment.  

The 13 January 2004 MEB NARSUM examination, 7 months prior to separation, noted complaints of chronic low back pain with weakness of the left lower extremity.  The examining physician wrote “his degree of complaints of subjective pain outweigh his ability to perform any active functional testing” making the examination difficult.  The CI would not stand upright to perform ankle flexor strength testing due to pain.  The range of motion (ROM) examination could not be conducted because the CI was not able to bend forward, rotate or side bend due to “excruciating low back pain.”  The CI was not able to straight leg raise, lie comfortably flat on his back or allow himself to flex forward at the hip.  While sitting, the CI was able to flex the hip to 70 degrees.  The panel observed that it was not documented that there was difficulty in sitting or then rising from the seated position.  In addition, it was not documented that there was a need for assistance.  The examination of the lower extremities was normal.  Neurovascular examination was noted to be difficult due to the inability to functionally test for dermatomal neurologic weakness.  Sensation was grossly intact.  Spasm and tenderness were not addressed.  A 3 February 2004 MRI showed circumferential disk bulging at L3-L4, L4-L5, right foraminal disk protrusion at L3-L4, diffuse disk bulging at L5-S1, and neural foraminal stenosis at L4-L5 and L5-S1.  

The CI was seen in consultation in rehabilitative medicine sometime between 3 February 2004 and 26 August 2004.  While this cannot be definitely determined, it appears from other entries that this was actually on 26 April 2004, 4 months prior to separation.  The CI reported constant low back pain which limited activity.  He denied bowel or bladder problems.  On examination, he used a cane and was independent other than needing help donning and doffing his shoes and socks.  On examination, he walked slowly with the use of a cane and had a painful gait.  Pinprick was decreased bilaterally in an L5 distribution.  He was able to stand on his toes and both dorsiflexion (toes up) and plantar flexion (toes down) were normal in strength.  The knee jerk reflexes were normal, but ankle jerks were absent.  Three signs of non-organic pain were present.  Spasm, tenderness and ROM were not addressed.
 
The 3 May 2004 neurologic consultation noted that sensation was diminished on the left compared to the right.  Muscle bulk was symmetric.  He moved “tightly” and used a cane.  Bending was restricted and it was noted to be “marked,” but not otherwise quantified.  

At the 7 June 2004 VA Compensation and Pension (C&P) evaluation, 2 months prior to separation, the CI reported that he had not worked since October 2003 due to constant low back pain.  There were no bowel or bladder complaints.  The CI stated his wife did his cooking, bathing and dressing.  He reported over three incapacitating episodes over the previous 12 months.  (These were not otherwise in evidence and the duration was not recorded.)  On examination, the 6 foot CI weighed 280 pounds (up 30 pounds from the 7 July 2003 neurology examination).  The CI could walk with a cane for 150 feet.  Neither tenderness nor spasm was present, but it was noted during the examination that he had a spastic gait and lumbar straightening was present.  Atrophy and weakness were absent.  Physical examination showed pain localized to the lumbosacral area with radiation to both buttocks of both legs.  There was numbness of both legs but no weakness.  Sensation was blunted over the L5-S1 dermatome on the left as compared to the right.  Motor function was normal.  Deep tendon reflexes revealed an absent ankle jerk on the right and left.  The examiner noted there was functional impairment of loss of flexion and extension of the lumbosacral spine.  On the spine portion of the examination, forward flexion was painful at 30 degrees, extension was painful at 30 degrees, right and left lateral flexion were painful at 5 degrees, and right and left rotation were painful at 8 degrees.  (The panel majority noted that although the ROM was painful, the actual limitation for the thoracolumbar spine was not documented.)  The examiner noted spine motion was painful with further ROM limitation due to pain, fatigue, weakness and lack of endurance.  (The panel majority noted this was not quantified.)  Extension and flexion decreased with repetitive motion.  (The panel majority noted this was not quantified.)    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing lumbar paraspinal tenderness, painful limitation of motion, and an essentially intact neurological examination.  The VA rated the back condition 60%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 month prior to separation, citing incapacitating episodes having a total duration of a least 6 weeks during the past 12 months.  

The rating for the spine includes criteria for ROM, incapacitation, spasm, tenderness, spinal contour and ankylosis.  The panel majority determined that no valid set of measurements for ROM was in evidence.  The NARSUM examiner noted that ROM testing was not accomplished due to pain (guarding), but the CI was able to sit down which implies some mobility in flexion.  Neither difficulty sitting nor the need for assistance was recorded though, as would be expected if these had been present.  The VA measurements were only to the onset of pain, not to the limit of motion.  The VA examiner recorded over three episodes of incapacitation, but did not record the duration.  It is not clear what evidence the VA rater used to determine a duration of at least 6 weeks, as this is not documented in the records available for review.  The VA examiner noted that neither tenderness nor spasm were present, but the posture and gait were spastic.  The sensory examination was not completely consistent between examinations.  The motor function, when not limited by pain, was normal.  Atrophy was noted to be absent when documented.  The panel majority determined there was probative evidence to support a higher 20% rating due to muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.    

BOARD FINDINGS: In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  

The panel recommends that 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	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

	

Minority Opinion 

The panel minority asserts that the evidence in the case file clearly supports a rating of 40% for painful limitation of flexion at 30 degrees.  The NARSUM, 7 months prior to separation, noted that the CI could not “bend forward due to excruciating low back pain.”  The neurology examination, 2 months prior to separation, noted that the CI moved “quite tightly” and had “marked restriction in bending [flexion].”  The CI’s spouse informed the examiner that she assisted the CI in dressing on a daily basis.  The C&P examination, 1 month prior to separation, noted the CI walked with a cane and had a spastic gait.  ROM testing showed the CI’s forward flexion was “painful at 30 degrees.”  Although the examiner did not indicate that the CI’s flexion was limited at 30 degrees due to pain, he gave many contextual clues that intimated that the 30-degree flexion measurement was the maximum the CI could forward flex his thoracolumbar spine and that the limitation was due to pain.  The examiner recorded:  “The veteran [had] a painful lumbar spine.  Forward flexion and backward extension of the thoracolumbar spine [was] painful at 30 degrees and 30 degrees, lateral flexion right and left produce[d] pain at 5 degrees, rotation right and left [was] painful on motion and there [was] limitation of the thoracolumbar spine with pain, fatigue, weakness and lack of endurance.  Repetitive use of the lumbar spine cause[d] loss of extension and flexion.  Flare up of the lumbosacral spine reduce[d] the extension and flexion of the lumbar spine.”  The panel minority notes the examiner referred to a goniometric examination in the ‘opinion’ paragraph of the examination, but the only goniometric measurements listed in the VA examination were 30 degrees of flexion (as stated above), 30 degrees of extension, 5 degrees of lateral flexion (left and right) and 8 degrees of rotation (left and right). 

VASRD §4.3 indicates that if a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  There is a reasonable doubt that the thoracolumbar flexion ROM measurement in the C&P examination was limited by pain at 30 degrees.  Therefore, the panel minority recommends a disability rating of 40% for the back condition, coded 5237. 

The panel minority recommends that the CI’s prior determination be modified as follows; and, the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	40%	

AR20180002696, 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