RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03514
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070805

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Construct Equipment Repairer, medically separated for “chronic back pain” with a disability rating of 10%.   

CI CONTENTION:  The CI made no specific contention.  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 - 20070620	VARD – 20071226 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain 	5241	10%	Status Post Lumbar Laminectomy with Degenerative Disc Disease and Asymptomatic Scarring	5242	40%	20070919	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in March 2005, while in Iraq, when he went to sick call complaining of low back pain that had started after climbing out of a vehicle without gear.  The CI underwent back surgery for fusion in September 2006 due to complaints of low back pain and left leg pain which the surgeon attributed to spondylolysis.  At a 16 November 2006 neurosurgery follow-up, the neurosurgeon indicated that post-operative X-rays looked “excellent,” with “good stabilization of the L5-S1 level.”  At early neurosurgical follow-up visits the CI reported some continued back and left leg pain and limited range of motion (ROM) was noted.  At a 16 January 2007 neurosurgical follow-up, the CI reported persistent lateral left leg pain.  The surgeon noted the CI had gained weight and was not doing any physical therapy (PT) or activity, other than walking at work.  He prescribed PT and recommended the CI lose weight and increase his overall activity level.  A 26 February 2007 PT visit, 5 months before separation, showed lumbar tenderness and flexion of 30 degrees (normal 90), extension of 15 degrees (normal 30), and lateral flexion 20 degrees bilaterally (normal 30), with moderate pain throughout all ROM.  PT notes indicated the CI was not compliant and he was discharged from PT due to lack of motivation and non-compliance on 2 March 2007.  At the 17 March 2007 primary care visit for the MEB, the CI reported that he stopped PT due to pain and no benefit after four sessions.  A March 2007 MRI showed surgical screws in place with postoperative changes, and degenerative changes of bilateral facet joints between L4/L5 and L5/S1, with no evidence of a herniated disc or spinal stenosis.

During the 10 April 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, physical examination showed full ROM of the “L-Spine” and noted that the CI displayed pain when aware of the exam, but no pain when he was unaware.  The MEB examiner noted that “patient does not wish to lose weight or lower cholesterol.”  The 18 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain “80 percent of the time”, especially when sitting, standing, walking, climbing, bending, and lifting.  Physical examination showed a normal gait.  There was tenderness of the lumbosacral region, with left sacroiliac joint pain and mild muscles spasms on the right.  Lumbar ROM (measured with a goniometer) was flexion of 30 degrees with combined ROM of 135 degrees, with painful motion noted.  Heel and toe walk was normal and straight leg raise testing to elicit radicular symptoms was negative.  

At the 19 September 2007 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported daily severe pain and decreased ROM.  He rated his pain as a 6-7/10, and reported nothing seemed to help it.  He denied any pain radiation or bowel/bladder dysfunction.  He was able to walk at a slow pace, but his back would tighten up.  Any prolonged weight bearing caused pain, as well as any type of bending or twisting.  Physical examination showed an abnormal gait and posture with a slow gait and small steps.  There was tenderness of the lower lumbar region with tight muscle spasms noted.  There was no radiating pain with movement.  Lumbar ROM was flexion of 30 degrees and combined ROM of 115 degrees, with painful motion noted.  There was no additional loss of ROM after repetition.  Lower extremity strength and sensation were normal and straight leg raise was negative.  The examiner commented that there was no evidence of lumbar intervertebral disc syndrome or nerve root involvement.  Lumbar spine X-rays showed L5-S1 fusion with intact and well aligned hardware.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing thoracolumbar range of motion limited by pain; with localized tenderness.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  

The panel first discussed the discrepancy between the ROM evidence at the MEB Form 2808 examination and the other three ROM examinations cited above.  PT (5 months before separation), the MEB NARSUM, and VA examinations all noted ROM consistent with a 40% rating and the DD Form 2808 examination noted “full ROM.”  The panel deliberated at length whether the conflicting ROM evidence in record was sufficient to raise reasonable doubt as to the CI’s ROM limitation, given the divide between full ROM and marked limitation of flexion.  However, none of the three 40% examinations documented evidence or suspicion of exaggeration on physical examination.  The DD Form 2808 examiner did imply exaggeration; however, this examination was the least complete and lacked quantitative assessment of ROM.  The panel also discussed whether the documented quantitative ROMs were isolated lumbar ROM or thoracolumbar ROM as required by the VASRD.  Although the ROM at all examinations was referred to as lumbar ROM, there was nothing else to support that isolated lumbar ROM was actually measured.  Inexact language is commonly encountered in physical examinations such as “back ROM,”  “lumbar ROM,” “ lumbosacral ROM,” or simply “ROM” and it was agreed that it would be unlikely that three examiners over 7 months all measured isolated lumbar ROM, especially the C&P examiner.  Therefore, the panel concluded that the DD Form 2808 examination on its own did not overcome the remainder of the ROM evidence.  

The panel next discussed the documentation in the STR by multiple providers that the CI was non-compliant with post-operative treatment recommendations, including PT and lifestyle recommendations.  However, compliance with treatment is not a VASRD criteria for rating the spine.  Finally, the panel reviewed the medical evidence to assess the plausibility of the documented marked limitation based on the supporting clinical evidence and imaging.  At post-operative visits the CI continued to report significant levels of pain, aggravated by activity, and limited ROM was noted.  At both the MEB NARSUM and VA examinations, lumbar tenderness and muscle spasms were noted along with the limited ROM, and at the VA examination an abnormal gait was documented.  Lumbar MRI in March 2007 showed post-operative changes and degenerative residual spinal arthritis.  The panel agreed that the clinical evidence did not suggest any gross mismatch of the spinal pathology with the limitation of thoracolumbar ROM to 30 degrees.  Therefore, after careful deliberation the panel concluded that a 40% rating at separation was appropriate for limitation of thoracolumbar flexion not greater than 30 degrees.  Although the CI had intervertebral disc disease, there was no evidence of incapacitating episodes which would provide for a higher rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5241 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180005933, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXX
	
	A copy of this decision has been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure