RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-00484
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20051216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Light Wheeled Vehicle Mechanic, medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  Headaches should have been 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 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 - 20051116	VARD - 20060320	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Herniated Nucleus Pulposus L4-5	5237	10%	20060222	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered an atraumatic onset of LBP in March 2003.  Imaging studies demonstrated mild degenerative disc disease at multiple levels (L5-S1, L3-4 and L4-5) without significant neural compromise or surgical indications.  There were earlier STR entries that documented significantly limited range of motion (ROM), with flexion in the range of 25-50% of normal, but the ROM improved in later entries.  The majority of entries reflected non-specific ROM limitation with no indication that it was severe, and there was ample documentation of painful motion.  One entry noted flexion greater than 75 degrees (normal 90), and the MEB’s 16 June 2005 DD Form 2808 physical examination, 6 months before separation, recorded flexion to 70 degrees.  
The only complete set of goniometric ROM measurements in the available STR was performed by physical therapy (PT) on 26 August 2005, 4 months before separation, and documented flexion of 60 degrees and combined ROM of 200 degrees (normal 240), but did not address painful motion or other VASRD-ratable criteria.  Multiple examiners recorded normal neurological findings.  There was one STR entry that documented an antalgic gait, but a later one recorded a normal gait and normal spinal curvature.  There was no mention of antalgic gait or abnormal spinal contour in any other entries, and there was no STR documentation of any incapacitating episodes.  The 25 September 2005 MEB NARSUM examination, 3 months prior to separation, documented persistent pain ranging from a dull ache to incapacitating, exacerbated by carrying, bending or lifting.  The physical examination recorded an overall normal general examination without specifying any spine findings other than “pain with forward flexion to about 70 degrees.” 
 
The 22 February 2006 VA Compensation and Pension (C&P) evaluation, 2 months after separation, documented “constant” pain rated 5/10 as a baseline with infrequent flares to 8/10 by unspecified activities.  The examiner listed functional limitations of walking more than a mile, sitting longer than 45 minutes, lifting over 50 pounds and inability to run.  The physical examination recorded a normal gait, tenderness, right-sided spasm and normal neurological findings.  Measured ROM was normal in all planes (flexion of 90 degrees and combined ROM of 240 degrees) without specifying painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0% coded 5237 (lumbar strain), citing painful motion, suggesting the application of Army Regulation 635-40 (B-29, e).  All members agreed there was more than sufficient evidence to justify the minimum compensable rating (10%) under provisions of VASRD §4.59 (painful motion).  The VA rated the back condition 10% coded 5237, based on the C&P examination, citing painful motion.  There was insufficient evidence for gait disturbance, and no documentation of abnormal spinal contour or incapacitating episodes to support a rating higher than 10% under the VASRD §4.71a spine formula.  The only ROM evidence that would support a higher rating was the service PT examination.  The 60 degrees flexion from that evidence is the §4.71a threshold for a 20% rating, and the panel deliberated whether this was sufficient justification for a 20% recommendation.  Members agreed, however, that this single measurement just at the threshold of a 20% rating was not sufficiently probative; the NARSUM and C&P ROM measurements were temporally closer to separation and held more probative value than the PT measurements.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the back condition, preferring code 5299-5242 (analogous to degenerative arthritis of the spine).

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5242 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	5299-5242	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170215, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004681, 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