RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-03046
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060628

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Radio Transmission Specialist, medically separated for “chronic low back pain [LBP]” with a disability rating of 10%.  

CI CONTENTION:  No specific contention was made.  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 - 20060419	VARD - 20070811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	Residuals of Lumbar Discectomy	5237	10%	20070712	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s chronic low back condition began in 2002 the day after falling on an icy surface.  Over the several years that followed, the CI was diagnosed with a compressed disc and received multiple conservative treatments.  In May 2004, the CI reinjured his back digging post holes and again in 2005 when jumping in and out of fox holes.  An MRI revealed the CI had a total of six lumbar vertebrae with partial sacralization of L6 and mild ventral narrowing of canal at L4-L5 and L5-L6 levels.  Traction treatments and long term physical therapy (PT) followed.  In April 2005, an enhanced MRI showed a large central disc herniation at L5-L6 with extension toward the right side.  An EMG completed at the same time showed no obvious neurological compromise.  The CI underwent a right L5-L6 microdiscectomy procedure in August 2005.  In November 2005, an MRI of the lumbar spine showed that L5-S1 had evidence of surgical laminectomy with no evidence of discitis and no recurrent disc herniation noted.  During the 2 August 2005, a PT examination showed “extension 50% of normal and flexion 50% of normal.”  

At the 21 October 2005 PT examination goniometric thoracolumbar range of motion (ROM) showed flexion 40 degrees (normal 90) and combined 125 degrees (normal 240) following repetition.  There was pain, tightness and spasm.  During the 5 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the CI reported continued back pain with radiation down both legs.  Physical examination revealed normal ROM, guarded in all planes.  

The 1 December 2005 MEB NARSUM examination, 7 months prior to separation, noted complaints of lower back pain exacerbated by motion with pain radiating down both legs.  Physical examination was limited due to complaints of pain on flexion and extension of the lower back.  Gait was normal.  The CI was guarded during all ROM testing and ROM evaluation noted pain.  The examiner referenced the above PT ROMs.  

The 5 December 2005 rehabilitation discharge summary noted the CI initially presented with 50% decreased trunk flexion, and made good progress but there was aggravation on 17 October 2005, with later improvement, so that at discharge the CI had an 85% overall improvement.  Physical examination indicated “trunk ROM” was within normal limits (WNL) and “pain free.”  

February 2006 rehabilitation treatment notes indicated back pain was 1/10 exacerbated by activities and the CI had pulled a muscle while swimming and was slowly restarting lap swimming.  
Rehabilitation treatment notes from 1 June 2006 through 15 September 2006 revealed lumbar tenderness and stiffness with a palpated misalignment of the lumbar spine on the right.  There were decreases and increases of pain, stiffness, and tenderness across the 14 treatment sessions, with most sessions documenting palpated misalignment in the lumbar spine and muscle weakness.  The CI returned to treatment on 7 January 2008 with increasing LBP despite using a back support, heat, and narcotic pain medication.  Examination continued the prior findings as well as muscle spasm.  The evaluation did not document measured ROM values.  

At the 12 July 2007 VA Compensation and Pension (C&P) examination, 12 months after separation, the CI reported LBP radiating to the right leg.  Physical examination showed a normal posture and gait and a well healed surgical scar on the back.  There was lumbar tenderness and ROM was flexion to 70 degrees and combined ROM of 200 degrees.  During repetitive motion the CI had increased pain, easy fatigability, lack of endurance, and decreasing of flexion and extension with five more degrees (flexion decreased to 65 degrees and combined went to 190 degrees).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing ROM limited to pain, and likely application of AR 635-40, B-29 (in effect at the time).  The VA also rated the back condition 10%, coded 5237 (lumbosacral strain), based on the C&P examination, citing limitation of forward flexion greater than 60 degrees but not greater than 85 degrees, including pain.  

The panel deliberated the probative value of the examinations in evidence.  Only the pre-separation PT examination and C&P examinations were IAW VASRD §4.46 (accurate measurement) and they both also addressed repetitive motion.  The PT examination was closest to separation, however, it was only approximately 2 months following surgery.  The C&P examination had decreased probative value based on its remoteness from separation.  The panel also considered the rehabilitation treatment notes that indicated improvement in the CI’s back condition and the December 2005 rehabilitation discharge summary assessment of “trunk ROM WNL and pain free,” as well as the entirety of the record.  Although the limitation of motion at the PEB-rated PT ROM examination would support a 20% rating, the panel majority placed decreased probative value on that examination and adjudged that given the entirety of the record, there was insufficient evidence of limitation of motion to warrant a 20% rating.  All members agreed that there was sufficient evidence of tenderness or painful motion to support the 10% rating as adjudicated by the PEB.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS 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 majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the chronic low back condition, and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommends modification to 20% and did not elect to submit a 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:
PD-2017-03046

[AR NUMBER], XXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXX

	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.

Enclosure

PD-2017-03046