RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04255
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060103

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

CI CONTENTION:  “More than 1 service connected disability.” 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 - 20051101	VARD - 20070214	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Chronic Mechanical Low Back Pain	5237	40%	20061116	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI’s back condition began in May 2004 after being dropped from chest height while being carried.  Radiographic studies were negative and he was not a surgical candidate.  The 3 August 2005 neurology examination, 5 months prior to separation, noted complaints of 5-6/10 low back pain associated with left leg pain.  Physical examination showed an antalgic gait, but there was no evidence of spasm or guarding.  Forward flexion and extension were very poor with pain elicited by motion.  The 16 September 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of progressively worsening low back pain with running, prolonged walking, lifting greater than 15 pounds, sit-ups, push-ups or wearing Kevlar helmet and battle gear.  Physical examination showed no spinal deformity, but there was tenderness.  He had full range of motion (ROM) at the waist with pain in all directions.  Motor strength, reflexes and sensation were intact.  There was no clonus and negative Babinski.  Straight leg raise (SLR) testing reproduced his back pain at 70 degrees.  The 6 October 2005 physical therapy (PT) ROM study, 3 months prior to separation, showed lumbar ROM measurements taken with an inclinometer were flexion of 35 degrees (normal 90), and combined ROM of 135 degrees (normal 240).  There was moderate to severe pain and muscle spasms during ROM testing in all planes of movement.  

At the 16 November 2006 VA Compensation and Pension (C&P) examination, 10 months after separation, the CI reported chronic back pain that varied between 5-9/10 and radiated to either buttock.  There were no incapacitating episodes and he did not use a brace, cane or crutch.  Physical examination showed marked tenderness over the lumbar spine and both sciatic notches.  Lower extremity motor strength, sensation and reflexes were normal, SLR was limited to 5 degrees.  The ROM evaluation showed less than 5 degrees of flexion and total combined ROM of 30 degrees.  Movements were exquisitely painful from inception to completion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbar spine strain), citing full but painful ROM.  The VA rated the back condition 40%, coded 5237, based on the C&P examination, citing limitation of flexion.  

The panel considered these somewhat disparate examination and noted the PT examiner measured lumbar (not thoracolumbar) ROM with an inclinometer rather than with the required goniometer specified by VASRD §4.71a, Plate V.  The NARSUM examiner described full active ROM at the waist (equivalent to 90 degrees of forward flexion); and although this is NOT a VASRD compliant ROM measurement per se, it is a valid data point and comports with the remainder of this examiner’s clinical description and findings at the time.  The radiographic evidence, both before and after separation showed little, if no, spinal pathology.  The panel majority agreed the pre-separation PT and NARSUM examinations were closer to the date of separation than the post-separation C&P examination and held more probative value.  

Per VASRD 4.2, it is the responsibility of the rating official to interpret reports of examination in the light of the whole recorded history, reconciling the various reports of examination into a consistent picture.  Per VASRD 4.7, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  The panel majority agreed the 5 degrees of forward flexion noted on the C&P examination represented post-separation worsening because the measurement was not consistent with the overall picture seen in the pre-separation examinations more proximate to separation.  Therefore, despite the problems noted above with the MEB PT ROM evaluation, the panel majority 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 PT ROM evaluation, which was more proximate to separation and more reflective of the CI’s condition at separation.  There was no ankylosis of the thoracolumbar spine, thus the next higher 40% rating was not justified on this basis.  There was also no documentation of intervertebral disc syndrome 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 20% for the back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  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	5299-5237	20%	

The following documentary evidence was considered:

MINORITY OPINION:  The CI warrants a 40% rating based on the ratable evidence presented at the post-separation VA examination.  The minority dissents from the majority view that the condition rates 20% but no higher, based upon limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the MEB PT examination.  The MEB PT examination ROMs were measured with an inclinometer, not a goniometer.  Measurements with a goniometer are required IAW VASRD §4.46 to obtain accurate measurements.  Only the VA examination was conducted with a goniometer and the 5 degrees of flexion supports a 40% rating.  The only other way to apply a 20% rating to a standard back condition, other than using the General Rating Formula for Diseases and Injuries of the Spine, is to have documentation of intervertebral disc syndrome with incapacitating episodes, which was not applicable in this case.   The panel majority arrived at the overall disability rating of 20% without applying all the evidence.    

The panel minority recommends 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 Low Back Pain	5237	40%	

AR20190007257, 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 to 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.