RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01705
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E3, Trainee, medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  Given a higher rating by the VA for the back condition.  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 - 20051219	VARD - 20060311	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5235	0%	T12-T1 Compression Fracture 	5235	10%*	20060221	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	
	*The VA revised the rating to 40% on 20060503

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in April 2004 after falling from a ladder about 10-15 feet and landing on her tailbone during basic training.  At the ER on 2 April 2004 she was tender in the left lumbar area, had full range of motion (ROM), and was able to heel and toe walk.  X-rays were interpreted as positive for an approximate 5 mm L2 compression fracture; however, a formal reading revealed compression fractures of T12 and L1.  At a clinic visit on 3 April 2004 she felt better and noted Percocet (a combination of oxycodone, a narcotic, and acetaminophen, a pain reliever) was working well.  She had no loss of bowel or bladder function.  On examination she had minimal tenderness in the lumbar region and full ROM.  On 12 April 2004 examination revealed mild tenderness, no deformity of the spine, and full ROM.  Strength was full, sensation was intact, and deep tendon reflexes were 2+.  Straight leg raising (to determine nerve root irritation) was negative.  Treatment consisted of Motrin and a referral to physical therapy.  

On 18 June 2004 the CI reported “no current pain” and “no pain past few days.” On examination there was full ROM in all planes without pain.  At a physical therapy visit on 5 July 2004 the CI had full ROM in all planes with pain from the mid portion to end of flexion and at the end range of all motions.  The CI was discharged from active duty on 26 July 2004 without completing basic training and returned to her National Guard unit.  An MRI dated 1 September 2004 demonstrated a healing compression fracture of the L2 vertebral body with a loss of under 5 mm of height along the anterior aspect of the vertebral body.  There was reactive edema as well as a mild posterior annular bulge at L5-S1 with no significant accompanying central canal or neural foraminal narrowing.  A CT scan of the lumbar spine dated 2 September 2004 demonstrated a compression fracture of the superior end-plate of L1 involving the anterior aspect with approximately 20% loss of height along the anterior margin and none at the posterior aspect.  There was no posterior displacement of fragments or involvement of the posterior elements.  The lumbar spine was otherwise negative.  

The 3 August 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of lower back pain.  Physical examination showed flexion to 100 degrees (normal 90), extension to 5 degrees (normal 30) with pain, lateral bending to 45 degrees (normal 30 each side), and lateral rotation none (0 degrees) (normal 30 each side) due to pain.  She had a negative straight leg raise and was able to toe and heel walk.   She was nontender and had normal strength and 1+ reflexes of the lower extremities bilaterally.  During the 28 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported back pain since April 2004 with tingling and numbness in the arms and legs.  Physical examination revealed pain in flexion and extension.

At the 21 February 2006 VA Compensation and Pension (C&P) examination, 11 days after separation, the CI reported low back pain which was intermittent, averaged 4-5/10 in intensity, and was described as a deep ache.  She denied radicular symptoms, but reported numbness in both upper extremities in all digits with a pins and needles sensation.  Low back pain was increased by lifting, walking one mile, standing for 5 minutes, and sitting for more than an hour.  She used no back brace and took over-the-counter ibuprofen only.  She worked as a waitress and was in transition to a new job since she was unable to work as a waitress due to back pain.  Physical examination showed she was able to sit to stand within normal limits, as was her gait.  She was able to walk on toes and heels and fully squat and return to standing.  Her spine was nontender throughout including cervical, thoracic, lumbar, sacral, and coccygeal areas as well as the sacroiliac joints.  Neck and back musculature were unremarkable without pain to palpation.  Forward flexion was 90 degrees (normal 90) with pain when she assumed an erect position.  The combined ROM was 130 degrees (normal 240) with pain.  Following repetitive motion there was no further decrease in the ROM of the lumbar spine due to pain, flare-ups, weakened movement, excess fatigability, or incoordination.  Neurological evaluation was unremarkable with normal muscle strength and sensation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5235 (vertebral fracture or dislocation), citing full motion without tenderness.  On 11 March 2006 the VA rated the low back condition 10%, coded 5235, based on the C&P examination, citing vertebral body fracture with loss of 50% percent or more of height.  On 4 May 2006 the VA re-rated the low back condition 40%, coded 5235, based on the C&P examination, citing “your case more closely approximates the 40 percent level,” which was granted for forward flexion of the thoracolumbar spine of 30 degrees or less or, favorable ankylosis of the entire thoracolumbar spine.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees, or combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the NARSUM and VA examinations.  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 documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

Panel members noted the VA assigned a 40% rating 2 months after the initial rating based on “an estimate of overall functioning made by a physician and review of specific symptoms set forth in the rating schedule.  Not all symptoms under the specific evaluation need to be present to establish a higher evaluation.  In this case, your condition more closely approximates the 40 percent level.”  However, under the VASRD a 40% rating requires “forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.”  The CI did not have forward flexion of the thoracolumbar spine of 30 degrees or less.  Dorland’s Medical Dictionary defines ankylosis as "immobility and consolidation of a joint due to disease, injury, or surgical procedure," while the General Rating Formula for Diseases and Injuries of the Spine note (5) indicates “fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis;” however, neither an MRI or CT scan demonstrated ankylosis nor did the CI undergo any surgical procedures on the vertebrae of the back, muscles, supportive tissues, or nerves.  Therefore, the panel did not consider a 40% rating to be a viable option.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic low back condition, coded 5235.  

BOARD FINDINGS:  In the matter of the chronic low back condition, the panel recommends a disability rating of 10%, coded 5235 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	
Chronic Low Back Pain	5235	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180008639, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure