RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXX	CASE: PD-2017-02262
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20080619

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-4, Infantryman, medically separated for “chronic low back pain” 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 - 20080327	VARD - 20090424	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Degenerative Disc Disease [Surgical Residuals]	5243	0%	20090203	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	
	
ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was diagnosed with lumbar disc disease following a combat injury in Iraq that necessitated surgery (L4-5/L5-S1 microdiscectomy) in June 2007. He experienced a favorable post-surgical course with resolution of prior radicular symptoms, but remained unable to resume full duties. Post-operative STR provider entries documented a normal gait without note of abnormal spinal contour, normal neurological findings, and improving range of motion (ROM). There were no entries with contrary evidence to the above ratable findings and no evidence for incapacitating episodes after surgical recovery.

Measured ROM by physical therapy (PT) on 30 July 2007, 2 months after surgery, was flexion to 65 degrees (normal 90) and combined ROM of 145 degrees (normal 240). Measured ROM by PT on 26 November was flexion to 90 degrees and combined ROM of 235 degrees. Formal ROM measurements for the MEB by PT 2 months later were flexion to 65 degrees and combined ROM of 190 degrees. At that time, the PT examiner noted a normal gait but paraspinal tenderness and “decreased lumbar lordosis” without specifying associated spasm or guarding. The 11 February 2008 NARSUM examination, 4 months prior to separation, documented “constant” LBP rated 5- 8/10 that prohibited running and was exacerbated by bending, lifting, and load bearing. The NARSUM referenced the MEB’s DD Form 2808 physical examination performed by the same provider on the same day. The latter recorded the absence of spasm and normal neurological findings, without note of tenderness or abnormal gait or spinal contour. The NARSUM referenced the above formal PT ROM measurements, although the examiner noted flexion to “45-50 degrees” on the DD Form 2808.

The 3 February 2009 Compensation and Pension (C&P) general examination, 8 months after separation, documented the persistence of non-specific back pain, “still the same” per the CI, without specifying functional limitations. The physical examination recorded a normal gait and neurological findings without note of abnormal spinal contour and no tenderness, spasm, or guarding. The examiner documented normal ROM (no measurements) and stated there was no painful motion. In addition to the preceding C&P examination, a cardiology C&P examination was conducted on the same day and inexplicably included a detailed spine section. This documented “daily” back pain of “moderate” severity without elaboration of functional limitations, but specifying no incapacitating episodes. The physical examination documented a normal spinal contour but an abnormal gait (“walking with stiff back position”), tenderness, and spasm. Measured ROM was markedly disparate from the above C&P general examination that day, recording flexion to 15 degrees and combined ROM of 120 degrees. Of probative import, no VA clinical notes in the interim between separation and these C&P examinations documented severe ROM limitation; and, a VA PT note on 8 October 2008, 4 months after separation,` recorded normal ROM in all planes and a normal gait.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the lumbar spine condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness and the MEB PT flexion (65 degrees). The VA rated the condition 0% under the same code, based on the evidence from the C&P general examination and citing the absence of any minimum 10% criteria per the VASRD §4.71a spine formula. It was noted that a 20 July 2009 VA rating decision raised the rating to 40% (retroactively effective to separation), referencing the above cardiology C&P ROM measurements and citing the applicable §4.71a criterion for flexion of 30 degrees or less.

The panel first agreed that the conflicting evidence from the cardiology C&P was not sufficiently probative to serve as a basis for its recommendation. It was in marked contrast with a preponderance of contradictory evidence. It portrayed a drastic deterioration of spine motion that defied clinical explanation. It was also conspicuously out of place in a cardiology evaluation, and the possibility could not be excluded that it was erroneously included in the CI’s file. The panel also considered that the flexion recorded in the NARSUM (from the DD Form 2808) and the abnormal spinal contour recorded in the MEB PT examination both satisfied 20% criteria of  the
§4.71a spine formula. Panel members concluded, however, that neither of these (or even both together) carried sufficient probative weight to support a 20% rating recommendation. The NARSUM entry for flexion appeared to be an estimate and was superseded in probative value by multiple examinations with measured ROM in all planes compliant with VASRD §4.46 (accurate measurement). The single PT entry for abnormal spinal contour was not corroborated in any of the other multiple examinations in evidence, nor was it sufficiently linked with the VASRD- stipulated “muscle spasm or guarding severe enough to result in” abnormal spinal contour. There

was no evidence for incapacitating episodes that would support a higher rating under that formula.

With regard to rating based on ROM criteria, the panel agreed that the determinant probative value for its recommendation should be assigned to the MEB PT measurements. With the exception of the cardiology C&P evidence excluded as an outlier, there was no ROM evidence in support of a higher rating. The panel thus agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported in the MEB PT examination and corroborated by preceding PT examinations and the C&P general examination. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

BOARD FINDINGS: In the matter of the lumbar spine condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170227, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190007567, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure