RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02182
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050721

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

CI CONTENTION:  “I have chronic neck and back pain.  I am given physical therapy, equipment and other medication to help with this.  It has drastically affected my life.  I have a hard time sleeping and I am limited in the type of work and activities that I can do.  I also suffer from PTSD, depression and bipolar.  This has completely turned my whole world upside down.  It is a fight for me daily.”  The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  

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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20050701	VARD - 20060202	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5237	10%	Lumbar Strain	5237	10%	20050825	
Neck Pain	Not Unfitting 	Cervical Strain	5237	0%	20050825	
Depressive Disorder, NOS	Not Unfitting	Major Depressive Disorder	9434	50%	20050825	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI had a gradual onset of LBP in September/October 2003.  The CI denied any trauma or specific injury; he self-treated with Motrin and Tylenol and first sought medical attention in April 2004.  A bone scan in February 2005 was within normal limits.  Minor scoliosis was noted on a 15 February 2005 X-ray.  At an orthopedic examination on 17 February 2005 range of motion (ROM) was noted as full and gait was normal.  At the orthopedic MEB consult on 25 April 2005, 3 months prior to separation, the CI reported LBP for 3 years with insidious onset.  On examination his ROM was “most distinctly decreased with 40% of normal flexion” (approximately 45 degrees).  There was pain with extension.  Gait was normal.  

During the 19 May 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported chronic back pain with a pain/pulling sensation in the lower back with twisting.  Physical examination showed pain with forward bending to almost 90 degrees (thoracolumbar normal is 90) and backward bending with pain but normal ROM.  The 14 June 2005 MEB NARSUM examination noted complaints of pain all across the lower lumbar area described as “a squeezing of my spine.”  The examiner referred to the orthopedic MEB consult and the MEB examination noted above. A ROM examination dated 14 June (but noted as a 16 June addendum) recorded lumbar forward flexion measurements of 75, 65 and 55 degrees with pain (thoracolumbar normal is 90; lumbar normal is 60); combined ROM of greater than 185 degrees and less than 220 degrees (thoracolumbar normal is 240); and the examiner stated “all measurements were reproducible, except forward flexion and lateral flexion.”  There was no tenderness or spasms and gait was normal.  

At the 25 August 2005 VA Compensation and Pension (C&P) examination, one month after separation, the CI reported LBP, worse at night and with bending at the waist.  Physical examination showed normal spine contour and no tenderness or palpable spasms.  The ROM with repetition showed flexion of 90 degrees and combined ROM of 240 degrees.  Objective evidence of painful motion was not reported.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the low back condition 10%, coded 5237 (lumbar spine strain). The PEB cited flexion to 75 degrees with no muscle spasms, radiculopathy, deformity or tenderness.  The VA based the rating on the C&P examination, citing objective evidence of lower back function that was limited by pain.  The panel deliberated on the disparate examinations in evidence and noted that the limitation of lumbar flexion, 55 degrees after repetition as reported in the MEB NARSUM, suggested consideration of the next higher rating of 20%; however the examiner specified lumbar spine motion, and not the thoracolumbar spine specified by the VASRD (§4.71a, Plate V).  The examiner also indicated that forward flexion measurements were not reproducible.  Review of the source ROMs indicated that given the complete measurements (including over 30 degrees of rotations), it was more likely than not the reported ROM was of the entire thoracolumbar spine, and that decreasing ROMs following repetition did not indicate ROMs were not reproducible, but there was a DeLuca-like decrease following repetition.  Additionally, the 55 degrees of forward flexion following repetition aligned with the earlier orthopedic consultant’s evaluation of “40% of normal flexion.”  

Panel members also noted that the PEB’s adjudication for rating cited the pre-repetition 75 degrees of flexion from the MEB NARSUM.  Therefore the panel majority placed greater probative value on the NARSUM examination and 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 orthopedic examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes, which would provide for a higher rating under that alternate formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the back condition, coded 5237.  

Contended PEB Conditions:  Neck Pain and Depressive Disorder, Not Otherwise Specified (NOS).  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Neither of the conditions were profiled or implicated in the commander’s statement, and neither failed retention standards.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion. In the matter of the contended neck pain and depressive disorder, the panel recommends no change from the PEB determinations as not unfitting.  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	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007804, XXXXXXXXXXXXXXXXXX

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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 to 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