RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03220
BRANCH OF SERVICE:  army	SEPARATION DATE:  20050203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O3, Engineer Officer, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  He received a higher rating for his back condition from the VA and additional unfitting conditions were not considered.  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 - 20041025	VARD - 20050303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Spine Degenerative Disc Disease…	5242	30%	20050118	
Left Ear Asymmetric Sensorineural Hearing Loss	Not Unfitting	Left Ear Hearing Loss	6100	0%	20050118	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP began in 1991 during airborne and special forces operations.  In October 2003, while deployed, the CI was hit from behind and knocked to the ground while playing football which severely exacerbated his back pain.  Spine X-rays were suggestive of bilateral pars defects at L5-S1, grade II spondylolisthesis (a vertebra sliding over the vertebra below it), and decreased disc space at L4/5.   
At a post-deployment clinic visit on 26 February 2004, the CI’s station and gait were normal and he could heel-toe walk.  He had a full range of motion (ROM) and was able to touch his fingers to the floor; straight leg raise testing (to determine nerve root irritation) was normal.  On the same day, X-rays showed L5 spondylolysis (stress fracture of the small bony arch in the back of the spine between the facet joints) with normal vertebral body height.  There was mild narrowing of the posterior L5-S1 disk space and no evidence of spondylolisthesis.  Magnetic resonance imaging (MRI) on 1 March 2004 showed multiple level degenerative disc desiccation and discogenic disease, no spinal central canal narrowing, and a focal disc protrusion at L5-S1 with possible compromise of the exiting left L5 and definite compromise of left S1 nerve. 

At an orthopedic clinic visit on 2 March 2004, physical examination revealed tenderness of the lower lumbar spine but not of the paravertebral muscles.  Straight leg raising was negative, sensation was full bilaterally, and strength was 4/5 in all lower extremity muscle groups.  Posture and gait were normal when entering and leaving the clinic.  The examiner assessed LBP with radiculopathy and diffuse lower extremity weakness (which was not consistent with the MRI or other physical examination findings) and opined that surgical intervention was not warranted.  A treatment note on 7 June 2004 indicated the CI was unable to sit for more than a few minutes, and could not stand up straight or bend forward. 

At a neurosurgery visit on 13 July 2004, the examiner noted a waddling, stooped, antalgic gait, but that the CI was able heel-toe walk.  There was tenderness in the lumbar paraspinal region, muscle bulk was normal, and strength was decreased globally secondary to pain.  Bilaterally, deep tendon patellar and Achilles reflexes were 2+ and straight leg raising was positive; the CI was not a surgical candidate.  At an orthopedic clinic visit on 19 July 2004, the provider noted that physical therapy, nonsteroidal anti-inflammatory drugs, and activity modifications had not significantly improved symptoms, which included radicular paresthesias and motor weakness without bowel or bladder complaints.  On examination, ROM was normal, with mild hamstring tightness and moderate paraspinal tenderness.  Lower extremity strength was 5-/5, reflexes were 2+, and sensation was intact to light touch from L1-S2.  

During the 28 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the provider noted lumbosacral paraspinous muscle tenderness bilaterally, left greater than right, but no swelling, heat, or erythema.  Deep tendon reflexes were bilaterally symmetrical and increased in the lower extremities.  The CI’s gait was stiff, slow and bent forward.  ROM measurements by physical therapy on 7 September 2004 showed posture flexed forward 25 degrees from neutral.  Flexion was to 90 degrees (normal), limited by pain, and required support with his hands on both thighs; combined ROM was 195 degrees (normal 240). The 27 September 2004 MEB NARSUM examination, 4 months before separation, noted complaints of a dull ache in the lower back with severe sharp pain which occasionally radiated to either leg.  The provider referred to physical findings from the previous MEB and orthopedic examinations, but also indicated there was slight spasm.  

At the 18 January 2005 VA Compensation and Pension (C&P) examination, less than 1 month before separation, the CI reported constant sharp pain in the back with an intensity of 6/10 and flare-ups rated at 8-9/10.  He worked as an engineer and could perform activities of daily living; however, he could not participate in any recreational activities or sit for long periods in the car.  Physical examination revealed poor heel-toe walking and balance, but no lower extremity sensory loss or radiculopathy.  The examiner noted, “He could only leg raise 60 degrees bilaterally and hip flex 90 degrees bilaterally, but he had marked pain, weakness, fatigue, and lack of endurance with repetitive motion.“  ROM was flexion to 60 degrees but extension was not reported; painful motion, spinal contour, tenderness and spasm were not explicitly addressed, but marked pain was mentioned.  The examiner’s diagnosis was “lower back discogenic disease with a bulging disc, but no radiculopathy.” 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbosacral strain), citing spinal tenderness.  The VA rated the lumbar spine degenerative disc disease 30%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, with 20% for limited forward flexion to 60 degrees and 10% based on functional loss due to pain, weakness, fatigue, and lack of endurance.  Members agreed that a 20% rating, but no higher, was justified for limitation of flexion as recorded on the VA examination which incorporated physical findings 5 months or more before separation.  Additionally, at the July 2004 neurosurgery visit, the CI was noted to have a significantly antalgic gait as well as lumbar paraspinal tenderness.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel noted that the PEB mentioned "without radiculopathy" and the CI contended "lumbar spine degenerative disc disease with bulging and neuropathy at L5/S1." However, radiculopathy is not in the scope of review since it was neither referred to the PEB by the MEB for adjudication, nor was it independently adjudicated as an unfitting or not unfitting condition by the PEB.  

Panel members then discussed the rating assigned by the VA and noted that neither code 5242 or 5237 offers a 30% rating.  While the General Rating Formula for Diseases and Injuries of the Spine states, “Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code,” there was no objective neurologic abnormality at the time of separation.  VASRD §4.45 (the joints) addresses the inquiry directed to less, more, weakened, or pain on movement, excess fatigability, and incoordination, however, no quantitative loss of motion was indicated.  Therefore, the panel agreed it would be speculative to assign a higher rating or an additional rating in the absence of the examiner’s statement of the loss of degrees of motion.  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 5237.

Contended PEB Condition:  Left Ear Asymmetric Sensorineural Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  Audiology evaluation on 4 August 2004 revealed a 50 dB loss at 4000 Hz, and an ear, nose and throat consultation on 12 August 2004 indicated the CI had an asymmetric, high-frequency, sensorineural hearing loss in the left ear with type A tympanograms bilaterally and normal speech reception thresholds.  An auditory brainstem response showed an increased left ear latency and could not rule out a retrocochlear process, but a 19 August MRI of the internal auditory canals was unremarkable.  On 18 January 2005, a VA audiology examination showed a 60 dB loss at 4000 Hz and normal speech recognition with a mild to moderately severe high frequency sensorineural hearing loss on the left and normal hearing acuity on the right.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left ear asymmetric sensorineural hearing loss condition, the panel recommends no change from the PEB determination as not unfitting.  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 Low Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170404, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008981, 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