RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02816
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070910

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Multiple-Launch Rocket System Crewmember , medically separated for “chronic back pain” with a disability rating of 0%.

CI CONTENTION:  The CI made no specific contention.  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 - 20070726	VARD - 20080425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	0%	Lumbar Spine Degenerative Disc Disease	5243	40%	20080425	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI developed low back pain after a fall during pre-deployment training in 2005.  He successfully completed the deployment, but the condition worsened.  Radiographic studies demonstrated degenerative disc disease from L3 to S1 with “mild” to “minimal” neural compromise.  Electrodiagnostic testing was negative for radiculopathy and surgery was not recommended.  There was documentation in STR provider entries of range of motion (ROM) that ranged from grossly normal to nonspecifically limited.  The poorest measured ROM in provider notes was flexion to 30 degrees (normal 90) from a chiropractic entry in December 2006, with extension of 15 degrees (normal 30) and bilateral flexion of 25 degrees (normal 30).  A physical therapy entry three weeks earlier, however, had recorded flexion to the knees (~45-60 degrees).  There was consistent documentation in STR clinical notes of painful motion, tenderness, and sometimes spasm.  There were variable entries for gait disturbance, although there was a trend toward a persistently abnormal gait in later entries, but there was no significantly probative evidence for abnormal spinal contour.

The 26 March 2007 MEB NARSUM examination, 6 months prior to separation, documented intractable low back pain that prohibited running and interfered with lifting and prolonged standing.  The physical examination recorded a “slow and antalgic” gait and guarded truncal motion without specifying tenderness or spasm, and normal neurological findings.  Measured ROM (specifying goniometer) was flexion of 50 degrees and combined ROM of 190 degrees (normal 240), noting painful motion in every plane (ROM degradation with repetition was not addressed).

At the 28 February 2008 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported being unemployed “due to back problems,” but there was no reported history of any interim injury or aggravation of the condition.  The pain was characterized as “constant” and aggravated by walking, bending and lifting.  The physical examination recorded “a severe limp with marked antalgic gait,” paraspinal tenderness, no spasm, and “no evidence of any gross muscle weakness.”  Measured ROM, with significant deductions (DeLuca) for loss after five repetitions, was flexion to 25 degrees (pre-deduction 55) and combined 75 degrees (pre-deduction 120).  Of probative note, the CI underwent a state disability examination on 15 July 2008 (10 months after separation) that recorded ROM measurements of flexion to 20 degrees and combined ROM of 80 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5299-5237 (analogous to lumbosacral strain), citing localized tenderness and “[ROM] limited by pain” (presumptive application of Army Regulation 635-40, [B-29, e]).  The VA rated the condition 40%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing limitation of flexion.

The panel first noted that the PEB’s 0% rating was negated both by satisfactory evidence of painful motion (minimum 10% IAW VASRD §4.59) and by the 10% §4.71a spine criterion for tenderness.  Before addressing the applicable ROM criteria for rating, the panel further agreed that a minimum rating of 20% was supported solely on the basis of the §4.71a criterion for abnormal gait.  The latter (with sufficient evidence that it was attributable to thoracolumbar spasm or guarding) was amply corroborated in STR clinical evidence and documented by both the NARSUM and VA C&P examiners.  There was conflicting ROM evidence that bore on the panel’s recommendation.  The NARSUM evidence supported a rating of 20% (flexion greater than 30 degrees but not greater than 60 degrees), whereas the C&P evidence (conceding DeLuca deductions) supported a rating of 40% for flexion of 30 degrees or less.  The panel thus deliberated whether the determinant probative value for its recommendation was more fairly assigned to the NARSUM or C&P evidence, noting that the temporal relationship to separation was equivalent for each.

The panel concluded that the NARSUM evidence was of greater probative weight.  Although the VA ROM evidence was corroborated by the subsequent state disability examination, the latter was significantly remote from separation.  The NARSUM ROM evidence was better aligned with that from multiple STR providers over a more extended period of time, and logically consistent with the clinical baseline at separation.  There was not a good clinical explanation for the deteriorating ROM through separation to the C&P examination and worsening to the time of the state examination, and the overall pathology (mild-to-moderate disc disease without surgical indications) was better aligned with the moderate ROM limitation measured by the NARSUM examiner.  The DeLuca testing by the VA examiner was taken into consideration by the panel, but that was mitigated somewhat by the absence of spasm on examination (lack of an objective finding correlating with the severe degree of ROM limitation) and was not sufficient to overcome the preponderance of evidence just presented.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the back condition, coded 5242 (degenerative arthritis of the spine).

BOARD FINDINGS:  In the matter of the lumbar spine condition, the panel recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation: 

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170328, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190008419, 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.