RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02722
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E1, Military Police, medically separated for “chronic low back pain” with a disability rating of 0%.  

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 - 20071023	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	No VA Examination Proximate to Separation	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 2001 while performing combat maneuvers during deployment.  He sustained no physical trauma.   A CT scan on 11 August 2005 showed left L5 spondylolysis (degenerative changes) with reactive sclerosis (thickening) in the right L5 pedicle.  There was no spondylolisthesis (a vertebra sliding over the vertebra below it) and no canal stenosis or neuroforaminal narrowing (where nerves traverse the vertebral column).  An MRI, also on 11 August 2005, was normal.  At a physical therapy (PT) visit on 26 October 2005 the CI reported left lower back pain, which went down to the left buttock since March 2005 after his vehicle was hit by an IED and ammunition cans hit his back, which threw him off the turret.  Rest, PT, non-steroidal anti-inflammatory drugs (NSAIDs), and muscle relaxer medication provided minimal relief of symptoms.  X-rays of the lumbar spine dated 11 September 2007 were negative.  An MRI on 22 October 2006 showed minimal degenerative disc changes and bilateral L5 pars defects.  There was no evidence of intervertebral disc height loss and no spondylolisthesis.  The CI had an epidural steroid injection on 13 February 2007.  

At the orthopedic clinic appointment on 17 August 2007, the CI reported a pain level of 3/10.  On examination he was in no distress and had a normal gait and posture.  There was tenderness but no muscle spasms.  Lumbosacral spine motion was normal.  During the 11 September 2007 orthopedic clinic, the CI denied radicular pain, paresthesias (tingling), or weakness of the lower extremities.   He had a normal gait and posture.  The examiner noted the CI was in no acute distress and “no physical disability was observed.”  X-rays performed the same day showed normal lumbar spine alignment and disc space heights were preserved.  There was no fracture or malalignment and no significant degenerative disc disease noted.  Soft tissues were unremarkable.  

Thoracolumbar range of motion (ROM) measurements performed by PT on 25 September 2007 showed flexion of 20 degrees (normal 90) and combined ROM of 105 degrees (normal 240) after repetition.  Measurements were taken with an inclinometer.  Limitation was due to pain, which was 5/10 prior to taking the measurements and 7/10 after taking the measurements.  No mechanical limitation was noted and there was no kyphosis or scoliosis.     

During the 3 October 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), less than 2 months prior to separation, the CI listed taking Percocet (oxycodone, a narcotic, and acetaminophen, a pain reliever) and Motrin (ibuprofen, an NSAID) as needed and reported a fractured vertebra in March 2005 and pain while lying in bed.  Physical examination revealed the CI’s height was 74 inches and he weighed 248 pounds.  The examiner checked normal for the spine on the clinical examination and listed lumbago in the summary of defects and diagnoses.  The 10 October 2007 MEB NARSUM examination, approximately one month prior to separation, showed the CI was not in acute distress.  He had a normal gait with no tenderness to the spinous processes or paravertebral muscles.  There was no evidence of kyphosis, lumbar lordosis, or scoliosis.  Lower extremity strength was normal and sensation was intact.  Straight leg raising (to determine nerve root irritation) was negative and hip testing was normal.  No thoracolumbar ROM measurements were provided.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded as 5237 (lumbar spine strain), citing ROM decreased due to pain, normal gait and no tenderness or muscle spasm.  The panel noted that the limitation of thoracolumbar flexion (20 degrees) as reported in the PT ROM examination suggested consideration of a 40% rating; however, the PT ROM measurements were not corroborated by objective findings on the MRI and X-rays, and other examinations found normal ROMs and no spasm, guarding, or abnormal spine contour.  Gait and posture were consistently noted to be normal with examiners stating the CI was in no acute distress.  The PT examiner stated the abnormal limitation in motion was due to pain, which was present prior to the measurements as well as after the measurements.  It was unclear to the panel whether the CI did not attempt full thoracolumbar spine excursion, but failure to attempt does not meet an acceptable standard for a ratable measurement.  Furthermore, PT ROM provided values for the thoracolumbar spine using an inclinometer rather than the goniometer, which is IAW the VASRD §4.46 (accurate measurement).  

The PT measurement of 20 degrees flexion also raised questions about its accuracy.  Although measurements were labeled as thoracolumbar, the use of an inclinometer suggested a segmental measurement of the lumbar ROM rather than the thoracolumbar ROM.  From a technical standpoint, the segmental approach to measurements of the spine was the standard under the old spine rules.  Because of the disparity between prior ROM measurements and the PT measurements, members considered the fact that the 20 degrees lumbar measurement was a component of a thoracolumbar measurement.  Therefore, addition of 30 degrees of thoracic ROM to the 20 degrees of presumptive lumbar ROM equals 50 degrees.  Nevertheless, that presumption would be speculative at best and still seemed to be inconsistent with clinical and imaging findings.  Therefore, the final rating was based on tenderness of the spine with a rating of 10%.

More importantly, the CI had a baseline of pain of 5/10 before the PT measurements were recorded and 7/10 after the measurements.  Therefore, the extent of pain, even before measurements began, was a confounding variable, which influenced the accuracy of the measurements for rating purposes. Furthermore, the CI weighed 248 pounds and the examiner did not comment whether body habitus played a role in what would be considered normal for the CI based on the VASRD General Rating Formula for Diseases and Injuries of the Spine Note (3), which states in part:  “In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion…”   The panel concluded the preponderance of evidence reflected an overall disability picture that most nearly approximated the 10% rating based on the findings of tenderness on orthopedic and NARSUM examinations that was more reflective of the anticipated severity based on the clinical and imaging findings.  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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10% coded 5237 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	
Low Back Pain 	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170315, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180011273, 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