RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02633
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040923

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a  National Guard E4, Personnel Administrative Specialist, medically separated for “low back pain” with a disability rating of 20%.

CI CONTENTION:  Back pain has continued to worsen.  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 - 20040827	VARD - 20060309	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain 	5241	20%	Degenerative Disk Disease, Lumbar Spine	5010-5242	40%	20050106	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with lumbar decompression, partial L4-L5 hemilaminectomy (removal of a portion of vertebra) and microdiskectomy at L4-5 and L5-S1 in June 2001 prior to entering active duty.  She was activated in January 2003 and complained of a 5-week history of LBP in April 2003 after heavy lifting.  She also noted in June 2003 that she experienced LBP from climbing and bending while on gate duty.  The CI underwent a second back surgery on 18 February 2004 with bilateral decompressive laminectomy (removal of the back part of the vertebra covering the spinal canal) at L5-S1 with total facetectomy (removal of the facet joint), and foraminotomy (removal of bone and tissue surrounding the neuroforamen) bilaterally with a posterior lateral fusion supported by pedicle screws and rods.  On 13 April 2004 she reported doing better than prior to surgery and the pain down the legs had dramatically improved; however, she continued to have back pain with a severity of 6-7/10 and was only able to work about 4 hours despite pain medication.  A CT scan showed postoperative changes from the L5-S1 fusion, a stable L5-S1 disc height loss and a stable mild posterior disc bulge at L4-5.  There were also postoperative changes from the complete L5 laminectomy and left S1 hemilaminectomy.  

At a neurosurgical clinic visit on 15 June 2004 she complained of pain in the lower back, left buttock and left leg.  Goniometric range of motion (ROM) measurements showed flexion of 60 degrees (normal 90) and combined ROM of 180 degrees (normal 240), after repetition.  By 21 June 2004 she reported LBP, which radiated down her leg, with a severity of 7/10 at a physical therapy clinic visit. 

The 5 July 2004 MEB NARSUM examination, less than 3 months prior to separation, noted complaints of LBP and pain in the left buttock.  Physical examination showed a normal gait and stance.  Straight leg raise testing (to determine nerve root irritation) was normal and motor examination was negative.  Sensation was diminished to pinprick over the L4 and L5 distributions in the left leg, but deep tendon reflexes were normal at the knees and the ankles.  There was markedly diminished ROM of the back in all directions due to pain, but no actual measurements were recorded.    

At the 6 January 2005 VA Compensation and Pension (C&P) examination, less than 4 months after separation, the CI reported crippling back pain every day and took morphine (a narcotic) twice daily.  Physical examination showed a normal gait.  There was no swelling, effusion or tenderness of the spine, but there was paraspinal spasm in the lumbar region.  Lumbar spine movements were markedly limited and the examiner noted ROM was performed with some apprehension.  Pain began as soon as movement began.  Lumbar spine forward flexion was 10 degrees (normal 60 degrees).  The examiner noted the “exercise” (examination) was uncomfortable for the CI, and discomfort by grimacing was shown when the testing was performed.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion), citing forward flexion of 60 degrees.  The VA rated the back condition 40%, dual coded 5010-5242 (traumatic arthritis-degenerative arthritis of the spine), based on the C&P examination, citing forward flexion limited to 10 degrees due to pain.

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), as reported on the pre-separation neurosurgery examination.  The VA flexion measurement was a lumbar ROM measurement and not the thoracolumbar spine measurement as specified by the VASRD.  The lumbar spine ROM was 10 degrees, which converts to 40 degrees of thoracolumbar motion since 60 degrees is normal for isolated lumbar flexion.  While the VA examination should also warrant a 20% rating for limitation of flexion, the panel placed greater probative value on the neurosurgery examination, which was performed prior to separation.  Furthermore, it was more detailed and compliant with VASRD rating guidelines and was not marked by pain as soon as the examination began as was the case during the VA examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.

BOARD FINDINGS:  In the matter of the back 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 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 20170308, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190006101, 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.