[AR Number], XXXXXXXXXX

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XXXXXXXXXX
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Dear XXXXXXXXXX:

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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX 	CASE:  PD-2017-02537
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060607

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Heavy Vehicle Driver, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  No specific contention was made.  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 - 20060502	VARD - 20080307 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5242	10%	Osteoarthritis Lumbosacral Spine	5242	20%	20060903	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in September 1994 after a motor vehicle accident (MVA).  The back condition was aggravated in April 2003 after heavy lifting.  MRI and X-rays of the spine showed minimal pathology.  The 11 October 2003 letter by orthopedics noted normal reflexes, motor function and sensation in both lower extremities.  The doctor opined there was no structural or inflammatory abnormality of significance.  At the 3 June 2004 functional capacity evaluation, the CI presented with a limp in his gait and spasm was present.  The ROM study showed flexion of 25 degrees (normal 90) and combined ROM of 85 degrees (normal 240).  The 20 October 2004 deployment health clinic examination showed tenderness and lumbar spine ROM was “50% normal due to muscle spasm.”  At the physical therapy appointment the same day, lumbar spine measurements showed flexion of 15 degrees and combined ROM of 95 degrees with painful motion.  The CI had to use a cane for support and balance during ROM testing.  

The CI’s civilian physician in December 2004 noted frequent muscle spasms, tenderness, limited ROM and a positive straight leg raise (SLR) test.  The doctor cited recent radiographic studies, which revealed degeneration at L4 with a small lipoma, but there was no indication for surgery.  The physician opined the CI was incapable of sustained activity, regardless of exertion level, had a poor response to pain and was not malingering or exaggerating his symptoms.  The CI was referred to pain management who documented tenderness and somewhat limited ROM.  The CI had normal lower extremity motor strength and electrodiagnostic testing was negative.  The 1 February 2005 deployment health clinic examination showed muscle spasm.  An MRI showed central disc protrusion at T7-T8.  

At the 16 November 2005 VA Compensation and Pension (C&P) examination, 7 months before separation, the CI reported that walking, twisting or squatting increased the back pain.  He reported daily flare ups lasting 10 hours.  The examiner noted the CI had a slight limp and used a cane for assistance with ambulation.  Physical examination showed tenderness, but no muscle spasm.  Muscle strength was 5/5.  Lumbar spine ROM was flexion of 70 degrees and combined ROM of 150 degrees.  At the 16 November 2005 physical therapy ROM study, 7 months before separation, lumbar ROM measurements were flexion of 20 degrees and combined ROM of 115 degrees.  The examiner noted “all motions were painful with [the CI] stopping the passive ROM due to pain.”  The 9 December 2005 C&P examination, 6 months prior to separation, noted use of a cane for ambulation and a slight limp.  No spasm was noted, but there was tenderness.  The ROM study showed flexion of 70 degrees and combined ROM of 150 degrees.  

During the 17 April 2006 MEB NARSUM examination, 2 months prior to separation, the CI complained of left lower back pain with radiation to left lower extremity without complaint of bowel or bladder dysfunction.  The examiner noted the CI used a single-point cane to walk.  The CI was unemployed for more than a year due to his back condition and left lower extremity paresthesia.  Surgery was offered but the CI equivocated.  Physical examination showed moderate tenderness.  SLR testing was negative on the right and on the left side, was positive at 60 degrees.  Sensation was slightly diminished along the left L5 dermatome, but reflexes were normal bilaterally.  The 22 May 2006 civilian family practice examination showed a straight back without deformities, but there was tenderness.  The SLR test on the right was 60 degrees and on the left 30 degrees.  Imaging studies of the lumbosacral spine, dated August 2006, were negative.  

At the 15 August 2006 C&P general medical examination, 2 months after separation, the CI reported intermittent pain, loss of 80% of ROM, moderate stiffness, severe weakness, moderate to severe spasm, radiating pain down the buttock to the hip and intermittent erectile dysfunction.  Precipitating or aggravating factors included weather changes, overexertion and activity.  There was moderate to severe limitations on instrumental activities of daily living.  Physical examination showed an antalgic gait, mild lumbar flattening and stooped posture with muscle spasm and tenderness, but no joint laxity, swelling or effusion.  The SLR test was positive.  The goniometric thoracolumbar ROM study showed flexion of 30 degrees with pain and combined ROM of 105 degrees.  The examiner noted up to 20 degrees loss of motion with repetitive use.  There was a mild loss of vibration sense in both lower extremities.  The 7 March 2008 Decision Review Officer Decision, cited this examination as well as the spine examination on 14 February 2008 (outside of probative period), which resulted in a 20% disability assignment.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), citing ROM limited by pain.  Initially the VA did not service-connect the back condition, citing no permanent residual or chronic disability.  However, the CI appealed and in 2008, the VA retroactively rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on a private medical examination and the MEB examination, citing tenderness and flexion of 70 degrees.  The rating was retroactively effective 29 April 2005.  On the same 2008 rating decision, the VA also outlined their increase in rating to 20%, based on the second C&P examination, citing abnormal spinal curvature with moderate to severe low back spasm, use of a cane to assist with ambulation and flexion of 30 degrees with pain.  The rating was retroactively effective 30 September 2006.  

The panel noted the CI reported lower back pain over a two year period, non-responsive to conservative treatment.  Neuroimaging did not show significant abnormalities.  The probative value of each examination was considered, with much discussion on the two examinations most proximal to separation.  While ROM varied by examination and examiner (even on the same day i.e. November 16, 2005), the panel noted the most consistent, recurring finding was muscle spasm associated with an abnormal gait, present on multiple examinations.  The panel concluded that this was a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20% coded 5242 IAW VASRD §4.71a.  The single voter for dissent recommends modification to 40% and re-characterization, but does 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 Low Back Pain	5242	20%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170316, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record