RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXX	CASE:  PD-2017-04397
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060313

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

CI CONTENTION:  “My back has gotten so bad I can barely walk at the end of the day.  It is effecting my day to day life and I have become unable to work.”  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 - 20060119	VARD - 20060810	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	L4-S1 Fusion	5241-5243	40%	20060511	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery in May 2005 with lumbar fusion at L4-5 and L5-S1 after being hit by a motor vehicle.  Following the surgery the CI reported resolution of the sharp pain down his left lower extremity (LLE) but continued with low back pain (LBP) and numbness and tingling down the LLE.  He was treated by physical medicine and participated in physical therapy without significant improvement.  

The physical therapy MEB range of motion (ROM) evaluation on 29 November 2005, 4 months prior to separation, showed flexion of 15 degrees (normal 90) and combined ROM of 105 degrees (normal 240) with painful limitation in all planes of motion.  During the 30 November 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported constant back pain.  Physical examination showed a normal gait, but there was lumbosacral spine tenderness and painful limitation of motion.  Straight leg raise testing to elicit radicular symptoms was negative.  The 29 December 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued LBP that radiated to the left buttock with numbness and tingling down the LLE.  The pain was aggravated by prolonged standing, sitting and lying down.  Physical examination showed a well-healed lumbar incision and paraspinal muscle spasm.  Examination maneuvers to elicit radicular symptoms increased LBP, but did not cause radicular symptoms.  

At the 11 May 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant LBP that radiated to the left posterior thigh with numbness, but no weakness.  Physical examination showed normal posture and gait, but there was flattening of the normal lumbar lordosis without muscle spasm.  Thoracolumbar ROM testing showed flexion of 40 degrees and combined ROM of 125 degrees with painful motion.  CI declined repetitive motion testing stating it provoked significant increase in back pain and muscle spasms.  Tenderness was only noted at the scar location.  Lumbar X-rays showed the fusion with intact surgical hardware.  The lumbar spine was stable in flexion and extension.  

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 painful limitation of motion with muscle spasm.  The VA rated the back condition 40%, dual coded 5241-5243 (spinal fusion-intervertebral disc syndrome), based on the C&P examination, citing functional loss.  

Although the ROM documented at the PT ROM evaluation for the MEB supported a 40% rating, the ROM noted at the C&P examination supported a 20% rating.  At the time of the PT ROM evaluation the CI was 6 to 7 months post-surgery, whereas the C&P examination was a year after surgery.  Full recovery and rehabilitation from lumbar fusion surgery can take many months (not uncommonly a year) and varies among patients.  In this case, the C&P examination was also the most proximate examination to the date of separation.  The panel majority therefore placed greater probative value on the C&P examination.  The panel majority agreed that a 20% rating was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the VA examination.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. 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 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent recommends a disability rating of 40%, but does not elect to submit a 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 Back Pain	5241	20%	

The following documentary evidence was considered:

AR20190004417, XXXXXXXXX
Dear XXXXXXXXX:
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.