RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX  	CASE:  PD-2017-03374
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Field Artillery, medically separated for “chronic low back pain” with a disability rating of 0%.   

CI CONTENTION:  Review of his back condition which has worsened was requested along with an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060726	VARD - 20070720	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	0%	IVDS with Degenerative Arthritic Changes	5010-5243	10%	20070514	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in December 2004 in the absence of reported trauma or injury, although he had a history of scoliosis.  Initial treatment consisted of a nonsteroidal anti-inflammatory drug (NSAID) and a muscle relaxer.  After being out in the field in August 2005 the CI had an emergency room visit for LBP.  Treatment consisted of a muscle relaxer and a combination narcotic-like medication/pain reliever (Ultracet).  On 18 August 2005, the CI reported no relief with the medication and the pain was in the lower back and left hip.  Treatment consisted of an injection of an NSAID (ketorolac), an oral NSAID, and a profile.  Increased pain with radiation to the left lower leg was reported in January 2006.  X-rays of the lumbosacral spine were normal, but an MRI dated 3 February 2006 showed mild disc bulging L3-4, disc bulging with superimposed left lateral disc protrusion L4-5 with left lateral recess and left neural canal compromise, and a broad-based left lateral disc protrusion L5-S1 with left lateral recess narrowing and compromise of the left neural canal.  At a physical therapy (PT) clinic visit on 15 February 2006, the CI described back pain as sharp/shooting to the posterior left thigh and to the knee.  On examination his gait was non-antalgic.  Flexion was 50 degrees (normal 90) limited by pain and there was tenderness throughout the lumbosacral spine and greatest at L5-S1.  Straight leg raising (to determine nerve root irritation) was positive on the left.  

On 16 February 2006 the CI was prescribed an NSAID (Celebrex) and prednisone (an oral steroid) for the LBP.  At an orthopedic clinic visit on 21 February 2006, lumbosacral spine motion was normal with no muscle spasm and negative straight leg testing.  At a 9 March 2006 orthopedic clinic visit, examination revealed a full range of motion (ROM) without pain and no tenderness.  Lumbosacral spine motion was normal with pain with forward flexion.  Straight leg raise (SLR) testing was negative.  Gait and stance were normal.  Neurological evaluation of sensation and motor function was normal.  Lower extremity reflexes were 1+ bilaterally.  The results of electrodiagnostic testing (electromyogram) suggested evidence of denervation in the left soleus, gastrocnemius, extensor hallucis longus, and extensor digitorum brevis muscles, most probably suggestive of the presence of L5 and S1 root lesions on the left side.  

At a 10 May 2006 orthopedic clinic visit, the CI was seen with the complaint of “still hurting” after pain management, PT, rest, and NSAIDs. At an orthopedic clinic visit 6 days later the CI reported continued pain, but he did not want spine surgery.  Thoracolumbar spine flexion was abnormal in that he only touched his knees (approximately 18 inches from the floor), but other motions were normal, and there was tenderness at the left L5 area, but straight leg raising was negative.  Strength was normal and there was decreased sensation on the left lateral leg and dorsum of the foot as well as the knee and medial leg on the right.  A narcotic/pain reliever (Percocet) was prescribed along with an NSAID.  

The 19 June 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of an inability to run or stand for long periods.  Standing longer than 10 minutes resulted in his left leg going numb.  Physical examination showed no tenderness.  SLR testing was negative bilaterally.  Neurological examination was unremarkable with deep tendon reflexes equal, balance and gait intact, and heal to toe walking normal.  On 28 June 2006, 2 months prior to separation, physical therapy ROM measurements showed flexion at 35 degrees (normal 90) and combined ROM at 150 degrees (normal 240).  

At the 14 May 2007 VA Compensation and Pension (C&P) examination, 8 months after separation, the CI reported constant pain with an intensity of 9/10 that traveled down the left leg.  No incapacitation was reported.  Physical examination showed posture was abnormal with moderate pes planus bilaterally, but gait was within normal limits.  Muscle spasm was absent, but tenderness was noted at the L5 region.  SLR testing was negative.  No ankylosis of the lumbar spine was noted.  ROM showed flexion at 75 degrees with pain and combined ROM at 165 degrees.  Joint function was limited by pain, but additional limitation of motion was present after repetition.  Sensory deficits were present on the left thigh, leg, and lateral foot.  Lumbar spine X-rays showed degenerative arthritis and joint narrowing.  The diagnosis was intervertebral disc syndrome (IVDS) with degenerative arthritis changes and the most likely involved peripheral nerve was the left sciatic (L5) with no complications.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 0%, coded 5242 (degenerative arthritis of the spine), citing ROM limited by pain.  The VA also rated the IVDS with degenerative arthritic changes 10%, dual coded 5010-5243 (arthritis, due to trauma – myositis ossificans), based on the C&P examination, citing muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.

The panel majority agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on a PT examination in February 2006 and at the VA examination, which was quite comprehensive.  In assigning probative value to the PT examination in June 2006, earlier ROM examinations and the VA examination, the panel noted the ROM values reported by the VA examiner were more consistent with other reported ROM observations in the STR.  Additionally, 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 recommends a disability rating of 10% for the chronic LBP, coded 5243.  

BOARD FINDINGS:  In the matter of the low back condition, the panel majority recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71.  The single voter for dissent submitted the appended minority opinion.  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 Low Back Pain	5243	10%	

The following documentary evidence was considered:

Minority Opinion.  The minority voter recommends a 20% rating for the chronic LBP where there is complete justification for limitation of flexion (greater than 30 degrees but not greater than 60 degrees as reported on the PT examination of 28 June 2006, 2 months prior to separation. where the ROM for flexion was 35 degrees and was compatible with a prior orthopedic examination where the CI could only touch his knees (approximately 18 inches off the floor), which is within the 20% rating range.  A probative value analysis of the PT examination versus the VA examination, which was 8 months after separation, clearly should and does favor a higher probative value determination since the PT examination measurements for the NARSUM examination was in accord with an earlier orthopedic examination; however, while the VA was a complete examination, it was more remote (8 months versus 2 months) from separation, and therefore had less probative value.  Furthermore, based on the MRI findings, it is not surprising that the ROMs would tend to fluctuate based on the CI’s movement, especially since there was unequivocal documentation of the lumbar region with one disc bulging and two discs protruding into the lateral recess as well as compromising the left neural canal.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.

Therefore, the minority voter recommends the ROP be modified as follows:

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 chronic LBP, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back pain, 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 Low Back Pain	5243	20%	

, XXXXXXXXXXXXXX 

Dear XXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified to 10% 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