RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02856
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051010

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, UH-60 Helicopter Repairman, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI stated “due to deteriorating health 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 - 20050906	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began on 29 March 2005 after falling 10 feet and landing on his back while performing maintenance on a UH-60 tail rotor.  He was transported to the hospital where CI scans of the spine were normal.  On 5 April 2005, the CI was noted to have flexion of the lumbar spine of 60 degrees (normal) with reduced extension and side bending at 20 degrees each (normal 30).  Two weeks later in flight medicine, the CI reported the pain was resolving with treatments.  Full strength, range of motion (ROM), and tenderness were recorded.  At the 20 April 2005, 6 months prior to separation, physical therapy appointment forward flexion of the lumbar spine was 60 degrees (normal for the lumbosacral spine).  On 10 May 2005 full ROM was again noted with tenderness and normal strength.  The CI presented to the emergency room on 16 May 2005 for LBP.  On examination there tenderness and strength were normal.  At the pain management consult on 18 May 2005, the CI reported persistent pain despite treatment.  The examiner noted the CI was in no acute distress and gait was normal.  Tenderness with palpable muscle spasms were noted.  The CI was seen in the flight medicine clinic later that day and was noted to be in mild distress.  Again tenderness with muscle spasms were noted with limited ROM (not quantified) secondary to pain.  An MRI on 20 May 2005 showed mild degenerative changes at multiple levels.

At the 31 May 2005 pain management clinic, the CI reported worsening pain and PT provided no relief.  However, the examiner noted minimal distress and a normal gait.  There was tenderness, right greater than left.  The examiner stated there was no identifiable source of pain.  On 1 June flexion was noted to be 45 degrees.  A bone scan on 27 June 2005 showed findings consistent with mild post traumatic changes.

The 30 June 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of chronic LBP not resolved with treatment.  The CI had been evaluated by multiple medical specialties (PT, pain management and orthopedics) with no relief of pain.  The CI was referred for psychological testing which excluded depression and malingering.  Radiological studies were referenced, but no physical examination was performed.  

During the 8 July 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported persistent LBP.  Physical examination revealed tender paraspinal muscles.  Thoracolumbar ROM measurements for the MEB were performed by PT on 15 July 2005.  These showed flexion of 30 degrees (normal 90 for the thoracolumbar spine) and combined ROM of 140 degrees (normal 240).  Reason for limitation was pain.  The 4 August 2005 flight medical appointment noted limited flexion and extension (not quantified) with normal rotation, tenderness and no muscle spasms.

There was no VA examination proximate to separation in evidence.  However, the panel did review later examinations as with the exception of the measurements obtained 2 days after the initial injury, the MEB flexion was an outlier from the prior examinations leading up to separation.  At the VA examination on 28 April 2010, 4.5 years after separation, flexion was 50 degrees and combined ROM 170 degrees.  Five years after that on 5 July 2015, flexion was 90 degrees and the combined ROM 235 (normal 240).  While these are too remote from separation for rating purposes, they do serve to anchor the multiple pre-separation examinations which show a flexion of between 45 and 90 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbar spine strain), citing paraspinal tenderness and passive ROM limited by pain.  The panel noted the limitation of thoracolumbar flexion (30 degrees) reported in the PT ROM examination suggested consideration of a rating of 40%, however, as noted above, it is an outlier from the preponderance of evidence and was not corroborated by objective findings on the MRI, bone scan or X-rays.  Tenderness was consistently recorded.  Muscle spasms were also recorded, but gait and posture were consistently noted to be normal with the examiners stating the CI was in no acute distress or mild distress.  

The panel concluded the preponderance of evidence reflected an overall disability picture that most nearly approximated a 20% rating based on the findings of tenderness or flexion measurements greater than 30 degrees but not greater than 60 degrees that was more reflective of the anticipated severity based on the clinical pathology.  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 20% for the low back condition, coded 5237.  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180011606, 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