RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00606
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20050930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E5, Carpentry/Masonry Specialist, medically separated for “chronic radiating low back pain” with a disability rating of 0%.  

CI CONTENTION:  Should be medically retired.  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 - 20050913	VARD - 20051027	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5299-5237	0%	Degenerative Disk Disease (DDD) Lumbar Spine	5242	40%	STR	
			Radiculopathy Left Lower Extremity	8520	20%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in early 2005 while doing carpentry/masonry work while deployed to Iraq.  Lumbar MRIs showed DDD at L2-S1 with a bulging disc at L5-S1.  Surgery was not recommended at the time.  

At the physical therapy evaluation on 3 May 2005, 5 months prior to separation, the CI reported low back pain rated at 4/10 that radiated to the left lateral hip with decreased sensation to the left first toe.  She stated that aggravating factors were sitting, rising from a sitting position, standing, lifting, bending, sit-ups, running, squatting and jumping.  The CI denied bowel or bladder changes, saddle anesthesia, weakness, unremitting night pain or unexplainable weight changes.  The physical examination showed normal posture and gait.  Sensation was “decreased all dermatomes on the left most remarkably at the 1st toe on the left per patient report.”  Her range of motion (ROM) was 60 degrees flexion (normal 90), 20 degrees extension (normal 30) and 20 degrees for both right and left lateral bending (30 normal).  Muscle strength was 5/5 bilaterally for lower extremities.  There was a positive straight leg raise test and a negative lumbar quadrant test (screening test for lumbar pain, can differentiate facet joint pain from nerve root irritation). 

The 1 August 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of “global” pain in the lower back and lower extremities that made her unable to perform the duties of her MOS.  Physical examination showed her ROM was 30 degrees flexion and combined ROM was 105 degrees (normal 240).  Her ROM limitations were deemed to be due to pain.  She had 5/5 strength in the lower extremities, except the left quadriceps and hip abductors were 4+/5, due to pain and not due to neurological deficit.  Reflexes were normal.  Her straight leg raise was positive on the left for pain in the lower back at 45 degrees.  She had an antalgic gait with use of crutches.  Her balance was normal and she exhibited pain responses to maneuvers not expected to elicit pain based on the CI’s spinal pathology.  

During the 9 March 2006 VA Compensation and Pension (C&P) examination, 5 months after separation, ROM was 60 degrees forward flexion and 175 degrees of combined ROM, with pain.  She had guarding for all motions of the lumbar spine and was tender in all areas.  There was no fixed deformity or postural abnormalities and no spasm was present.  Her musculature was normal and she had normal symmetry of motion and appearance of the spine.  The CI was unable to maintain her toes off the floor with heel walk on the left.  Sensation was decreased on the left leg below the knee and on the bottom of the left foot.  

The 3 January 2006 VA primary care initial visit noted that the CI’s pain was adequately controlled with use of Dilaudid (narcotic pain medication) and Neurontin (gabapentin) as needed.  The CI underwent evaluation by neurology and neurosurgery beginning in January 2006.  A February 2006 lumbar MRI showed mild DDD with mild left foraminal narrowing at L4-L5 and L5-S1, without canal stenosis.  Electrodiagnostic studies on 13 March 2006, 5 months after separation, were “essentially completely normal.”  A CT (computed tomography) myelogram on 29 March 2006 demonstrated essentially the same findings as the February 2006 MRI.  At the initial VA neurology evaluation 17 May 2006, 7 months after separation, the examiner noted the CI “works as packer for moving company.”  The CI reported low back pain that radiated to the left with intermittent left leg numbness.  Physical examination showed an antalgic gait.  Strength, sensation and reflexes were normal and SLR was negative bilaterally.  The VA neurology assessment was “low back and occasional left leg pain - no evidence of peripheral neuropathy on exam.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded analogously 5299-5237 (lumbar spine strain), citing pain limited motion.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the STR, citing limitation of motion.  The CI attended the VA C&P general medical examination 9 March 2006, 5 months after separation and the subsequent VARD dated 22 May 2006 continued the 40% 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 physical therapy and the VA examinations.  The MEB NARSUM examination documented flexion of 30 degrees, which supports a 40% rating.  However, the panel weighed the ROM evidence at the physical therapy visit, 5 months before separation, and at the C&P examination, 5 months after separation, more heavily than the ROM noted at the MEB NARSUM examination, 2 months before separation, because the MEB NARSUM examiner documented multiple positive signs of pain responses to maneuvers not expected to elicit pain based on the CI’s spinal pathology.  The other two examinations did not note any exaggerated pain behaviors.  Additionally, 7 months after separation, though still reporting back and intermittent left leg pain, the CI was noted to be working as a packer for a moving company, which the panel thought was incompatible with thoracolumbar ROM consistently limited to flexion of 30 degrees.  Although the CI did have intervertebral disc syndrome, there was no evidence of 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 5299-5243.  

The PEB adjudicated “chronic radiating back pain,” therefore, the panel considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  While the CI reported radiating pain to the lower extremities, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Electrodiagnostic studies of the lower extremities 5 months after separation were normal.  There was no evidence in this case that motor or sensory deficits due to lumbar radiculopathy existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5299-5243 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 Radiating Low Back Pain	5299-5243	20%	

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 

AR20180004714, 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