RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02791
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Automated Logistics Specialist, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  “Because I did not enter into the military with this problem.  I spent enough time in the service to retire.”  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 - 20080626	VARD - 20081103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain	5299-5237	10%	Low Back Strain	5237	0%	20080908	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Mechanical Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 2004 after heavy lifting.  X-rays showed mild scoliosis, but the lumbar MRI dated 29 May 2008 was normal.  During the 23 April 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported constant low back pain associated with muscle spasms.  Physical examination revealed paraspinal tenderness with pain limited flexion and extension (without measurements).  Gait was normal.  The ROM evaluation by physical therapy (PT) on 7 May 2008, showed pain limited forward flexion of 60 degrees (normal 90) after repetition.

The 9 June 2008 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant back pain that worsened with standing greater than 15 minutes or driving more than 3-4 hours.  Most activities increased her pain.  She walked a mile every morning on weekdays for exercise.  She did not take medications for pain.  Physical examination showed a normal gait, no obvious evidence of back deformity, no muscle spasm or atrophy.  The CI had normal muscle strength in the lower extremities and sensation was intact.

At the 8 September 2008 VA Compensation and Pension (C&P) evaluation, 2 weeks before separation, the CI reported daily 7/10 back pain.  The CI denied incapacitating episode requiring prescribed bedrest and she was not taking any pain medication.  Examination of the lumbar spine showed dextroscoliosis with a normal gait and posture.  Thoracolumbar ROM showed forward flexion of 90 degrees and extension of 30 degrees (normal).  There was no objective evidence of painful motion, spasm, weakness or tenderness.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing forward flexion of 65 degrees and combined ROM of 213 degrees.  The VA rated the back condition 0%, coded 5237, based on the C&P examination, citing evidence of normal thoracolumbar spine ROM.

Panel members considered the available evidence at separation.  The panel majority agreed, the ROM measurements reported during the C&P examination offered greater probative value since the measurements were most proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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 20170421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

MINORITY OPINION:

The PEB inaccurately assessed a 10% rating based on range of motion data provided by PT.  The PEB rating was based on forward flexion of 65 degrees and combined range of motion of 213 degrees as cited on the DA Form 199. 

The actual ROM measurements provided by PT are noted in the chart.  

Thoracolumbar ROM
(Degrees)	PT ROM for MEB	
Average	
Flexion (90 Normal)	68, 65, 62	65	
Extension (30 Normal)	15, 18, 18	17	
R Lat Flex (30 Normal)	24, 26, 26 	25	
L Lat Flex (30 Normal)	25, 23, 26	25	
R Rotation (30 Normal)	41, 40, 42	41	
L Rotation (30 Normal)	38, 41, 41	40	
Combined (240 Normal)		213	

The minority voter noted that the PEB cited the combined ROM as 213 degrees, but apparently did not truncate the measurements which exceeded the normal standard for right and left rotation.  IAW VASRD 4.71a Note 2, “The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM.”  (Normal values are noted in the chart above).  IAW VASRD 4.71a, Note 4, “Round each ROM measurement to the nearest five degrees.”  Again, it appears the PEB did not round each measurement and instead inappropriately used the averages.  The minority voter believes the proper assessment of flexion after repetition of use is appropriately rounded to 60 degrees and the combined range of motion, after repetition, is 190 degrees.  

The minority voter believes a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees IAW the VASRD.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  
 
The minority voter 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	20%	

AR20180008721, 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