RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00729
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051205

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

CI CONTENTION:  The VA gave him a higher rating.  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 – 20050606	VARD - 20071204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Lumbar Strain	5237	20%	20070304	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:    

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in June 2000 after a fall.  An MRI showed mild disc desiccation and an enlarged broad based right posterolateral disc protrusion contacting the right S1 nerve root without impingement.  There were mild to moderate diffuse annular bulges from T12-L1 to L4-L5 with bilateral foraminal encroachment at L4-5 and mild diffuse posterior disc or annular bulge at T12-L1, L1-L2, L2-L3 and L3-L4 without focal disc protrusion or canal stenosis at those levels.  Surgery was not recommended. 

At a neurosurgical visit on 12 October 2004, range of motion (ROM) measurements were flexion of 80 degrees (normal 90) and extension of 30 degrees (normal 30).  At the time of a medical clinic appointment on 22 March 2005, 9 months prior to separation, physical examination showed mild tenderness to palpation bilateral paraspinous muscles without spasm.  ROM measurements showed a flexion of 120 degrees and combined ROM of 240 degrees (normal 240).  

During the 7 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the physical examination showed paraspinal tenderness with limitation of movement with flexion, extension, and lateral bending.  The CI was unable to perform active rotation secondary to pain.   The CI had a normal gait and a straight leg raise test (to determine nerve root irritation) was negative for radiculopathy.  

The 8 April 2005 MEB Addendum (physical medicine), 8 months prior to separation, noted persistent low back pain aggravated by physical activity or exertion.  Physical examination showed a normal gait, but tenderness and spasms were present.  A straight leg raise test was negative for radiculopathy.  The examiner noted the ROM measurements were performed by physical therapy; however, the measurements were not in evidence.  Muscle strength was normal, but reflexes were decreased.  The 16 May 2005 MEB NARSUM, 7 months prior to separation, incorporated examination findings of 7 April 2005, 8 April 2005, and 22 March 2005 (see above).  The examiner’s final diagnosis was “severe low back pain” with some objective findings on MRI.  

At the 4 March 2007 VA Compensation and Pension (C&P) evaluation, 15 months after separation, the CI reported persistent low back pain.  Physical examination showed mild lumbar dextroscoliosis (spine curvature to the right), but there was no spasm.  However, there was tenderness and ROM measurements after repetition showed flexion of 60 degrees and combined ROM of 200 degrees.  The CI had normal strength, reflexes and sensation, and straight leg raise testing was negative.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing painful limitation of motion without neurologic abnormality.  The VA rated the back condition 20%, coded 5237 (lumbosacral strain) based on the C&P examination.   

Although there was insufficient limitation of motion on STR examinations proximate to separation to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion and tenderness.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  

In assigning probative value to these somewhat conflicting examinations, the panel noted that the MEB measurements were consistent with the diagnostic and clinical pathology in evidence.   The VA examination’s probative value was determined to be limited by its remoteness of 15 months after separation, and reflected worsening of an undetermined etiology.  Therefore, based on all evidence and the associated conclusions, the panel consensus was that preponderant probative value should be assigned to the MEB ROM measurements.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.   

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004794, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure