RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04349
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20070416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Cavalry Scout, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that he should have been medically retired.  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 - 20070308	VARD - 20070606	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Disc Disease L3-4, L4-5, and L5-S1	5242	20%	20070322	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in November 2005 without inciting injury or trauma noted.  It became worse with continued physical training.  The 19 May 2006 radiographs showed straightening of the lumbar curvature due to muscle spasms.  At the 15 June 2006 chiropractic clinic visit the CI complained of constant back pain.  On examination, there was tenderness and spasm in both the lumbar and thoracic regions of the spine.  Gait was antalgic, but posture was normal.  Range of motion (ROM) testing showed flexion of 35 degrees (normal 90).  Combined thoracolumbar ROM could not be calculated because the extension and left later flexion measurements were not included.  The examiner noted that pain was elicited by motion.  At subsequent chiropractic examinations on 22 June 2006, 10 July 2006 and 21 August 2006, the CI complained of 7-8/10 low back pain with occasional numbness and tingling down the right leg with pain radiating down the right leg to the calf.  Examinations continued to show tenderness and muscle spasm of the lumbar and thoracic spines with an antalgic gait and normal posture.  An MRI dated 6 August 2006 showed degenerative disc disease from L3-S1.  There was a focal disc protrusion at L4-L5, but with minimal compromise of the foramina bilaterally and without impingement of the L4 nerve roots.  

During the 30 November 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the examiner recorded constant low back pain radiating down the right leg with occasional tingling and numbness in right leg.  This was aggravated by prolonged sitting or standing and daily activities.  Physical examination showed paraspinal muscle tenderness of the lumbosacral spine.  ROM testing showed decreased flexion, extension, right rotation and right lateral flexion.  Actual ROM measurements were not recorded.  Pain was elicited with ROM.  Gait was normal.  Lower extremity motor strength and reflexes were normal as was the neurologic evaluation.  

At the 1 December 2006 physical therapy (PT) examination, 5 months prior to separation, the CI reported 6-7/10 back pain that did not preclude work or social activity.  ROM testing conducted with an inclinometer (except for rotation measurements, which were taken with a goniometer), showed, after repetition, 25 degrees of flexion and 145 degrees of combined thoracolumbar ROM (normal 240).  There was pain in all planes of motion.  The examiner also noted localized tenderness and muscle guarding in the paravertebral muscles, but no abnormal gait.  The 13 February 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of lower back pain with bending forward.  Physical examination showed tenderness to palpation of the lumbar spine with muscle guarding in the thoracolumbar paravertebral muscles, but no abnormal gait.  Abnormal spinal contour was not addressed.  ROM testing showed 25 degrees of flexion and 145 degrees of combined thoracolumbar ROM.   

At the 22 March 2007 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported 6/10 pain, weakness, stiffness, fatigue, and lack of endurance of the lumbar spine precipitated by physical activity.  The CI also reported numbness and pain of the right lower extremity extending to the calf.  The CI reported that walking was difficult when spasms were present.  Physical examination showed tenderness to palpation.  ROM testing after repetition showed 40 degrees of flexion (with pain noted from 10-40 degrees) and combined thoracolumbar ROM of 190 degrees.  Painful motion was noted in all planes of motion.  The examiner also noted that he could not determine without resorting to speculation if pain, including pain on repeated use (and pain during flare-ups), fatigue, weakness, lack of endurance or incoordination caused additional functional loss.  Gait, motor strength, reflexes and sensation were normal and straight leg raise testing was negative.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain with localized tenderness and without neurologic abnormality.  The VA rated the back condition 20%, coded 5242, based on the C&P examination 1 month before separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel first considered the probative values of the differing ROM examinations and agreed that the C&P examination held more probative value than the MEB PT examination and NARSUM, because it was conducted prior to and closer to separation.  The panel also noted that the C&P ROM measurements were presumably taken with the VASRD-required goniometer.  

The panel 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 VA examination.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of 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 20% for the back condition, coded 5299-5242.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5299-5242 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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5299-5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170403, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006283, 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