RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02941
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20060425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Cannon Crewmember, medically separated for “chronic mechanical low back pain status post fusion L5/S1 (Nov 05) with residual tenderness to palpation of the paraspinous muscles and radiculitis without radiculopathy, muscle spasm or deformity” with a disability rating of 10%.

CI CONTENTION:  Left thigh numbness has worsened.  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 - 20060411	VARD - 20060925	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain Status Post Fusion L5/S1	5241	10%	Lumbosacral Spine	5241	20%	20060601	
			L5 Radiculopathy	8720	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in April 2005 after ambulating on crutches after right ankle surgery.  He underwent an L5-S1 fusion in November 2005, and a CT scan on 20 January 2006 showed anatomic alignment with no hardware complication.

During the 9 December 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, physical examination showed spinal tenderness and a negative straight leg raise (SLR) test for radiculopathy.  At a neurology evaluation on 20 January 2006, 3 months before separation, the CI reported occasional LBP with left thigh tingling.  Physical examination revealed a normal gait and stance, no spinal tenderness or muscle spasm, and negative SLR testing.  Lumbosacral spine range of motion (ROM) was “abnormal” with painful motion elicited. 

At the 8 March 2006, MEB physical therapy (PT) evaluation, 2 months before separation, flexion was 70 degrees (normal 90) with a combined ROM of 205 degrees (normal 240) after repetition; painful motion was present.  The 9 March 2006 MEB NARSUM examination noted CI complaints of LBP aggravated by physical activity, sneezing or coughing.  Pain, tingling and numbness also radiated to the left thigh, calf, and foot.  He denied bladder or bowel dysfunction but had occasional urinary urgency.  Physical examination revealed an antalgic gait and use of a cane due to a right ankle cast.  His stance was normal, but there was spinal tenderness and a positive SLR test.  There was no muscle spasm, and lower extremity motor strength and sensation tests were normal; the examiner referenced the March 2006 PT ROM findings.  During another MEB PT evaluation on 6 April 2006, the provider noted normal lower extremity strength and the ability to “fully squat buttocks to floor with moderate lumbar-spine pain;” ROM showed flexion to 40 degrees and a combined ROM of 145 degrees with painful motion.

At the 1 June 2006 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI complained of constant LBP that radiated to the left calf and occasionally to the left foot.  He denied bowel or bladder incontinence, flare ups, or any falls, and wore a back brace.  Physical examination showed a normal gait, the ability to heel-toe and tandem walk without effort, spinal tenderness, and no muscle spasm.  There was no radiculopathy, and lower extremity muscle strength and sensation were normal.  Flexion was 50 degrees with a combined ROM of 145 degrees and painful motion.  X-rays showed a normal vertebral body height and alignment.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing tenderness and radiculitis without radiculopathy, muscle spasm, or deformity.  The VA rated the back condition 20%, coded 5241, citing limitation of flexion.  Members 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 April 2006 MEB PT, and VA examinations proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel noted the PEB explicitly adjudicated the LBP condition “without radiculopathy” and the CI contended this condition.  Radiculopathy is therefore in the panel’s scope of review and will be addressed.  Although the CI reported radiating back pain, numbness and tingling into his left leg, this pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty at the time of separation.  Therefore, the panel concluded an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the LBP condition, coded 5241.

BOARD FINDINGS:  In the matter of the LBP condition, the panel recommends a disability rating of 20%, coded 5241 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 as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Mechanical Low Back Pain Status Post Fusion L5/S1	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170330, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008802, 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