RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-01590
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20050419

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Topographic Analyst, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  “See attached.”  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 - 20050225	VARD - 20050520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	DDD of L3-L4 and L4-L5 with Herniated Nucleus Pulposus at L4-L5	5299-5242	10%	20050502	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Chronic Back Pain. According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an onset of low back pain after a fall in 2001. Discography in June 2004 demonstrated degenerative disc disease (DDD) with diagnostic pain at L3/4 and L4/5 and a possible herniation at L4/5. Neurological examinations were normal and surgery was not recommended. Provider entries in the STR documented grossly normal to non-specifically limited range of motion (ROM) with none that indicated any more significant ROM limitation. There was STR documentation of a normal gait, no note of abnormal spinal contour, and no documentation of incapacitating episodes.

The 19 January 2005 MEB NARSUM examination, 3 months prior to separation, documented daily low back pain characterized as “moderate” that prohibited running, load-bearing, and heavy lifting. The physical examination recorded paraspinal tenderness with some spasm and ROM measurements consisting of flexion limited to 60 degrees (normal 90), but normal measured extension and bilateral flexion. The NARSUM included ROM measurements performed by physical therapy (PT) a month later (22 February 2005). The PT examiner charted flexion to 80 degrees and combined ROM of 185 degrees (normal 240), specifying painful motion.

At the 2 May 2005 VA Compensation and Pension (C&P) examination, 2 weeks after separation, the CI reported a “constant dull ache of the lower back with increased discomfort with prolonged standing, walking, bending, and lifting and with prolonged positioning.” The physical examination recorded a normal gait, “loss of normal curvature” with no tenderness and no note of spasm or guarding, and normal neurological findings (motor, reflexes, and sensory). Measured ROM was flexion to 60 degrees and combined ROM of 200 degrees, without specifying painful motion but stating that there was no additional pain with repetition.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the lumbar spine condition 10%, analogously coded as 5242 (degenerative arthritis of the spine), citing ROM limited by pain and localized tenderness. The VA conferred the same rating under the same code, referencing the C&P ROM measurements (flexion 60 degrees) and citing the VASRD §4.71a 10% spine criterion for flexion “greater than 60 degrees but not greater than 85 degrees.”

The panel noted that the C&P flexion was not consistent with the VA rater’s cited 10% criterion, since flexion limited to 60 degrees is the §4.71a threshold for a 20% rating. It was further noted that there was disparate ROM evidence with implications for the panel's rating recommendation. Measured flexion by both the NARSUM and the C&P examiners satisfied the 20% criterion as above, but the interspersed service PT measurements (including combined ROM) were consistent with 10% spine criteria. Panel members ultimately agreed that the NARSUM and C&P evidence should be assigned the determinant probative value. Since they temporally flanked the PT examination and were mutually corroborative, they were logically more consistent with baseline ROM limitation; and, furthermore, the C&P examination was specifically the most temporally probative to the date of separation. The panel members thus 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 NARSUM and C&P examinations. 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 the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the lumbar spine condition under code 5242.

BOARD FINDINGS: In the matter of the lumbar spine condition, the panel recommends a disability rating of 20%, coded 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 the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease, Lumbar Spine	5242	20%	

AR20190012271, XXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXX

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