RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02587
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060327

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

CI CONTENTION:  The CI contended that his condition should be rated higher.   The CI also requested review of his right lower extremity radicular symptoms.  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 – 20060130 	VARD - 20060627	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Lumbar Disk Bulge at L4-L5 and L5-S1 with Right Lower Extremity Radicular Symptoms	5243	20%	20060527	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in January 2004 after a fall.  An MRI demonstrated L4-S1 disk bulges abutting the right L5 nerve root.  A subsequent MRI in August 2005 showed minimal spondylitic changes without significant central or neural foraminal stenosis.  Electrodiagnostic testing (EMG/NCS) from 23 Feb 2005 was reported as normal.  The neurosurgery evaluation on 19 July 2005 found a normal gait with no sensory or motor deficits, but there was pain-limited range of motion (ROM).  The examiner noted no surgically treatable pathology.  

The 14 December 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of chronic low back pain with right leg pain and numbness, as well as right foot pain.  The right lower extremity pain occurred daily, but was not persistent.  Physical examination showed the CI walked with a limp and uncomfortable appearance, but heel-to-toe walking was normal, although great toe dorsiflex was “not very good” bilaterally.  There was tenderness.  The ROM testing showed pain-limited flexion of 15 degrees (normal 90), extension less than 5 degrees (normal 30), and lateral bending 25% of expected (normal 30).  There were no sensory changes, but reflexes were slightly asymmetric at the ankle.  There was no lower extremity muscle atrophy, but the right calf and thigh were slightly larger than the left.  Straight leg raising (for radicular signs) caused back pain.  The 10 January 2006 physical therapy MEB ROM evaluation, 2 months prior to separation, documented pain-limited flexion to 20 degrees (normal 90) and combined ROM of 125 degrees (normal 240).  There was tenderness and strength testing on right could not be accurately measured due to ratchet giving way.  The examiner noted non-physiologic findings (Waddell’s) of skin tenderness to light touch, simulation, distraction, over reaction, and regional weakness or decreased sensation.  

At the 27 May 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported low back pain with right leg and foot radiculopathy.  Pain was constant 6/10 with increase to 10/10 after walking more than a few yards or sitting more than 15 minutes.  Physical examination showed an antalgic gait, but there was no spasm.  ROM testing showed flexion of 40 degrees and combined ROM of 110 degrees with painful motion and no change on repetition.  There was no motor or neurologic deficit.  Straight leg raises were positive bilaterally for stabbing pain.  X-rays and MRI were negative.  The examiner noted Waddell’s bilaterally and stated, “I cannot explain the severe loss of ROM of the lumbar spine or the positive Waddell's sign or his straight leg raise complaints subjectively by the veteran given no loss of sensory findings motor and having totally negative MRI finding.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), citing ROM reduced by pain alone, and tenderness.  The VA rated the back condition 20%, also coded 5243, based on the C&P examination, citing IVDS with 40 degrees forward flexion.  It was noted that the VA increased the CI’s back rating to 40% effective 28 November 2007 (20 months remote from separation).  

In assigning probative value to these somewhat conflicting examinations, the panel noted that the MEB PT and initial VA examinations both clearly indicated the CI reported pain with examination maneuvers which would not be expected to elicit pain, based on the known pathology (Waddell’s signs).  Panel members agreed that the VA examination was closest to separation, most comprehensive, more consistent with outpatient notes, and more reflective of the anticipated severity based on the clinical pathology.  The MEB and MEB-PT ROM limitations were considered as outliers.  The panel therefore adjudged that the VA examination had the highest probative value for rating at separation.  

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and/or combined ROM (not greater than 120 degrees), as reported on the VA examination.  There was no documentation of IVDS 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 5243.  

The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported daily intermittent right lower extremity radicular symptoms and radiating pain.  There was no evidence of lumbar nerve root involvement by MRI or electrodiagnostic studies.  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.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 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	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180008669, 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.

Sincerely,					      
Enclosure