RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-03120
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051124

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

CI CONTENTION:  Review all 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 - 20051007	VARD - 20060127	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Thoracolumbar Spine Degenerative Disc Disease	5242-5243	20%	20051005	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a history of LBP from a fall in 2002, which was exacerbated during a 2004-2005 deployment to Iraq (no specific injury).  Imaging (MRI) documented multilevel degenerative disc disease (T12-L3, bulge at L5-S1 with left neural encroachment).  The CI initially complained of right leg radicular symptoms (contralateral to MRI pathology), but multiple neurological examinations were normal (5/5 motor, intact sensory, normal reflexes), and neurosurgery opined that surgery was not indicated.  There was documentation in STR provider notes of non-specific and “moderate” limitation of range of motion (ROM) and painful motion, as well as consistent findings of tenderness, but no spasm.  An antalgic gait was recorded by one examiner, but this was not corroborated in preceding or subsequent STR entries.  A normal spinal contour without spasm was noted by one examiner (proximate to the NARSUM evidence), and there was no STR documentation of abnormal spinal contour or incapacitating episodes.

The 12 September 2005 MEB NARSUM, over 2 months prior to separation, documented that the CI “continues to experience chronic daily [back] pain,” which the examiner rated as slight and constant.  No radiation or neurological symptoms were noted, and the listed functional limitations included lifting, bending, twisting, and load-bearing.  The NARSUM examiner referenced his physical findings and ROM measurements from an earlier examination on 18 August 2005, which were also duplicated on the MEB’s DD Form 2808 physical examination.  This recorded tenderness, spasm, and normal neurological findings, with “remainder of exam normal.”  Lumbar flexion was to 30 degrees (normal 90) with a combined ROM of 145 degrees (normal 240); painful motion was not addressed.

At the 5 October 2005 VA Compensation and Pension (C&P) examination, less than 2 months before separation, the CI complained of constant LBP, rated at 7/10, with no radiation or note of sensory symptoms or subjective weakness.  The only description of functional limitation was “limited movement,” and the examiner specified that there had been no incapacitating episodes or work loss.  Physical examination recorded a normal gait and spinal contour, no tenderness or spasm, and normal neurological findings (motor, sensory, and reflexes).  The examiner specified the absence of a radiculopathy.  Thoracolumbar flexion was to 60 degrees and combined ROM was 210 degrees, with painful motion, but no ROM degradation with repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar spine condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing localized tenderness and ROM limited by pain (suggesting application of Army Regulation 635-40, B-29, e).  The VA rated the condition 20%, dual coded 5242-5243 (degenerative arthritis of the spine-IVDS), based on the C&P examination, citing limitation of flexion.  Panel members noted that while flexion to 30 degrees, as recorded by the NARSUM examiner, is the §4.21a threshold for a 40% rating, the NARSUM ROM measurements poorly correlated with the preponderance of STR evidence, to include gross ROM observations and collateral findings, e.g., no consistent spasm, gait disturbance, abnormal spinal contour, etc., that would logically be associated with that severity of ROM limitation.  The C&P ROM evidence was more proximate to separation, correlated with the overall physical findings, was more specific to VASRD rating (e.g., addressing painful motion, DeLuca considerations, gait, and spinal contour), and was more consistent with the clinical pathology (chronic non-surgical disc disease).  Thus, the panel agreed that the determinant probative value should be assigned to the C&P ROM evidence, and that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  There was no evidence of incapacitating episodes to support a higher rating under that formula.  Members agreed that additional rating for an associated neuropathy could not be justified, since neither the functional link to fitness requisite for service rating nor the presence of a VASRD-ratable deficit were in evidence.  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 lumbar spine condition, coded 5242.

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	
Degenerative Disc Disease, Lumbosacral Spine	5242	20%	

The following documentary evidence was considered:

[AR NUMBER], XXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

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.

Enclosure