RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03240
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Heavy Construction Equipment Operator, medically separated for “chronic back pain secondary to herniated nucleus pulposus L5-S1” with a disability rating of 10%.

CI CONTENTION:  “VA rated my back and radiculopathy conditions higher.”  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 - 20050608	VARD - 20050128	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5243	10%	L5-S1 Herniated Nucleus Pulposus, with Chronic Left S1 Radiculopathy	5243	10%	20041014	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in November 2002 while hammering a floor.  An MRI on 21 May 2003 demonstrated an L5-S1 herniated lumbar disc with compression of the thecal sac, but nerve impingement was not recorded.  Electrodiagnostic testing on 22 October 2003 showed a chronic left S1 radiculopathy, and an MRI on 6 October 2004 revealed a persistent herniated disc at L5-S1 without nerve impingement. Despite conservative treatment, the CI was not able to return to full duty; surgery was recommended but declined.  

At the 14 October 2004 VA Compensation and Pension (C&P) spine examination, 9 months before separation, the CI reported constant low back pain which fluctuated in intensity and flared-up once or twice a month.  There was occasional left thigh cramping and numbness without fecal or urinary incontinence.  Physical examination showed a normal gait and posture, but there was spinal tenderness.  Bilateral lower extremity sensation was intact, motor strength was normal, and muscle atrophy was absent.  Back range of motion (ROM) showed flexion to 80 degrees (normal 90) and a combined ROM of 190 degrees (normal 240), with painful motion.  Repeat electrodiagnostic testing on 22 April 2005 was normal.  

The 28 April 2005 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of chronic back pain aggravated by weather changes, lifting, and prolonged sitting or standing.  The CI also reported feeling radiating pain into his left leg with intermittent numbness and weakness, but denied bowel or bladder function loss.  Physical examination showed spinal tenderness but muscle atrophy was absent and reflexes were normal.  Lower extremity motor strength was 5/5 on the right and 4/5 on the left.  Back flexion was 50 degrees and combined ROM was 140 degrees, with painful motion.  The DD Form 2808 examination, the same day, noted normal neurological findings.  

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), citing tenderness and painful motion.  The VA also rated the back condition 10%, coded 5243, based on the C&P examination, citing limitation of flexion and tenderness.  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 MEB NARSUM examination most proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating.  The panel also determined there was objective evidence of a radiculopathy on the NARSUM examination; however, this was not supported by the electrodiagnostic testing less than one week earlier or the DD Form 2808 examination, which recorded a normal neurological findings the same day.  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 back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic back pain secondary to herniated nucleus pulposus, the panel recommends a disability rating of 20%, coded 5243 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	
Chronic Back Pain Secondary to Herniated Nucleus Pulposus L5-S1	5243	20%	

The following documentary evidence was considered:

AR20180012273, 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.

Enclosure