RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00565
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070722

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Armor Crewman, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  Each year the CI’s whole body feels worse.  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 - 20070413	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (LBP)	5243	10%	No VA Exam in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic LBP.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent back surgery with hemilaminotomy and discectomy in May 2006 for a right L5-S1 herniated nucleus pulposus.  At the time of his 14 August 2006 neurosurgery clinic appointment, he reported some mild back stiffness, but stretching exercises had really helped and he was generally doing very well.  The examiner noted the back wound was well-healed without tenderness or swelling and that range of motion (ROM) was “excellent at this point.”  A week later at a physical therapy (PT) appointment his lumbosacral flexion and extension were reported as normal with pain not elicited by motion.  Lumbar X-rays on 18 December 2006 were reported as unremarkable.  MRI studies on 10 January 2007 showed postoperative changes at L5-S1 with granulation tissue formation seen posterior to the hemilaminectomy defect at L5-S1 as well as within the spinal canal.  

The 26 March 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of LBP with flare-ups that could last up to 15 minutes, exacerbated by sitting for prolonged periods, walking, and lifting.  Incapacitating episodes were not reported.  Physical examination showed paraspinal tenderness and muscle spasms with no mention of altered gait or spinal contour.  Thoracolumbar ROM measurements, with repetition, showed flexion of 55 degrees (normal 90) and combined ROM of 185 (normal 240) with painful motion.  There was no VA examination in evidence proximate to separation.  However, at a 2 October 2007 VA Medical Center EMG physical medicine appointment, 3 months after separation, the physical examination showed reduced lordosis of the lumbar spine, tenderness in the paraspinous muscles, and a gait which “shows no antalgia” but the back appeared stiff.  Spasms were not reported.  Forward flexion was reported as limited to 30 degrees with painful motion.  There was no mention of incapacitating episodes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness and painful ROM with flexion of 55 degrees.  The VA did not provide a disability rating for the CI during the period proximate to separation.  In March 2012, close to 5 years after separation, the VA rated the LBP condition 20% coded 5242 (spinal fusion), based on a VA Compensation and Pension examination in November 2011, more than 4 years after separation.  

The panel discussed the worsened limitation of motion at the VA physical medicine appointment 3 months after separation.  The ROM values reported by the VA clinician 3 months after separation were significantly worse than those reported by the MEB NARSUM examiner 4 months before separation.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  Members agreed that the MEB NARSUM examination was more consistent with the STR and more reflective of the anticipated severity based on the clinical pathology.  The panel therefore relied more heavily on the MEB NARSUM examination measurements in determining the appropriate rating.  

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 MEB NARSUM examination.  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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the LBP condition, coded 5243  

BOARD FINDINGS:  In the matter of the LBP condition, the panel 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 that the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic LBP	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004709, 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