RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01083
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Radio Operator and Maintainer, medically separated for “chronic low back pain…” with a disability rating of 10%.  

CI CONTENTION:  “More complications have arisen since initial determination...”  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 - 20061106	VARD - 20070524	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with Radiation Down Right Leg	5299-5237	10%	Degenerative Pain, Lumbar Spine	5237	10%	20070222	
Subjective Right L5 Radiculopathy…	Not Unfitting	Right Sciatica, S1 Associated…	8520	10%	20070222	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI’s low back condition began in April 2006 after excessive push-ups during physical training.  Despite medical management, which included medications and physical therapy, his pain persisted.  At the time of the physical therapy clinic appointment on 21 June 2006, 5 months prior to separation, the CI reported chronic low back pain radiating to both thighs.  Physical examination showed low back tenderness, strength of 5/5 and a normal heel/toe walk.  MRI showed disc herniation secondary to a tear that produced displacement of the left L5 nerve root.  Thoracolumbar range of motion (ROM) showed flexion to the mid tibia.  

During the 30 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported low back pain with sciatica.  Physical examination showed full ROM with pain at extreme ranges and tenderness at L4/L5 vertebrae.  At the time of the physical therapy clinic and neurosurgery appointments on 6 September 2006, 2 months prior to separation, the CI reported an overall decrease in low back pain, except for after aquatics class.  Physical examination showed an antalgic gait.  Motor examination demonstrated no dysfunction.  MRI showed the lumbar spine was significant for L4-5 degenerative disc disease and a lateral herniation affecting L5 on the left.  Thoracolumbar ROM was normal except for extension, which was reduced about 25%.  Painful motion was noted with all planes.  

The 16 October 2006 MEB NARSUM examination, 1 month prior to separation, noted complaints of low back pain radiating into his right leg.  Physical examination showed the CI walked with an antalgic gait.  Strength was 5/5 and proprioception was intact.  MRI showed L4-5 degenerative disc disease and left eccentricity.  Thoracolumbar ROM showed flexion of 45 degrees (normal 90) and combined ROM of 170 degrees (normal 240).  Painful motion was noted and measurements were performed using a goniometer.  

At the 22 February 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant low back pain (8/10) that radiated through the hips and down the legs.  He reported having stiffness after sitting and muscle spasms.  Physical examination showed a normal gait and posture.  There was no tenderness.  There was muscle spasm present, right greater than left.  Motor function was normal.  Thoracolumbar ROM showed flexion of 70 degrees (normal 90) and combined ROM of 210 degrees (normal 240).  After repetitive use, ROM was additionally limited by pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5237 (lumbosacral strain), citing localized tenderness and ROM limited by pain.  The VA also rated the low back condition 10%, coded 5237, based on the C&P examination, citing objective evidence showing evidence of muscle spasm, pain, and limited range of motion.  

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 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.  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 low back condition, analogously coded 5237.  

Contended PEB Condition:  Subjective Right L5 Radiculopathy.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, nor shown in the commander’s statement.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  The pain component is subsumed in the back rating.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 20%, analogously coded 5237 IAW VASRD §4.71a.  In the matter of the contended subjective right L5 radiculopathy condition, the panel recommends no change from the PEB determination as not unfitting.  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 Low Back Pain…	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007235, 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