RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02166
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050303

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

CI CONTENTION:  Review all conditions.  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 - 20041215	VARD - 20050727	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5243	10%	Chronic LBP with Radiculopathy, Degenerative Disc Disease, Status Post Lumbar Diskectomy	5243	40%	20050425	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Radiating LBP.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent lumbar diskectomy surgery in May of 2003, for L4-5 and L5-S1 degenerative disk disease and L4-5 disk herniation.  Postoperatively he had persistent LBP.  The previous sharp and stabbing leg pain was resolved, but he still occasionally felt some radicular leg pain.

During the 20 September 2004 physical therapy (PT) clinic visit, range of motion (ROM) recorded flexion of 60 degrees (normal 90) and combined ROM of 190 degrees (normal 240) after repetition.  The 15 September 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of chronic LBP status post lumbar disk surgery.  Physical examination showed a well-healed incision in the lower back.  He had 5/5 strength in the lower extremities without atrophy and intact sensation.  

During the 1 October 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported severe constant back pain.  Surgery had improved his pain for a short period of time but then it returned.  The pain was in the lower left back, down the left leg, with numbness in the left foot.   Physical examination revealed left-side pain with tenderness on the left and over the midline scar.  There was decreased ROM, straight leg raise test was 65 on the left and 80 on the right, and Waddell’s test was negative 5/5.  At the 21 October 2004 PT clinic visit for MEB ROM measurements examination showed flexion of 73 degrees and combined ROM of 172 degrees after repetition.  The results of electrodiagnostic studies in October 2004 noted no evidence of radiculopathy.

At the 25 April 2005 VA Compensation and Pension (C&P) evaluation, one month after separation, the CI reported he suffered from degenerative joint disease of the lumbar spine and a ruptured disc at L4-L5.  The pain was elicited by physical activity and relieved by the medication, Percocet.  Over the past year he had one incident of incapacitation for a total of 2 days, which included physician recommended bedrest.  Physical examination showed ROM flexion of 45 degrees and combined ROM of 172 degrees after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing limitation of motion.  The VA also rated the LBP condition 40%, coded 5243 (IVDS), based on the STR and C&P examinations, citing the disability picture was commensurate with a 40 percent evaluation based on pain, limitation of motion, and additional loss due to pain, fatigue, and weakness.  

The panel majority 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 September PT and VA examinations.  Since the CI had intervertebral disc disease causing radicular symptoms consistent with IVDS, the panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes requiring physician-prescribed bed rest.  According to review of the STR, the total duration of incapacitation with physician-prescribed bed rest over the 12 months prior to separation was one incident of incapacitation for a total of 2 days, however this did not result in a higher rating.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the LBP condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic radiating low back pain condition, the panel majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  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 Radiating Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010650, 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