RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04514
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20090127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “spinal stenosis, lumbar region,” with a disability rating of 10%.   

CI CONTENTION:  “Lower back.” 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 - 20080915	VARD - 20090821	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Stenosis, Lumbar Region	5238	10%	Degenerative Disc Disease, Lumbosacral Spine	5237	20%	20090429	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbar Spinal Stenosis.  According to the service treatment record and MEB narrative summary, the CI’s back condition began in approximately 2005 with gradual onset.  An MRI of the back showed congenital spinal stenosis with spinal arthropathy causing minimal to moderate neural foramen (space through which the spina nerve travels) encroachment at L5-S1.  In December 2007, the CI was evaluated by a neurosurgeon and determined not to be a candidate for surgery.  The orthopedics examination in February 2008 showed tenderness and muscle spasms.  In the year before separation four ROM evaluations showed back flexion of 80, 55, 40 and 45 degrees.  At two evaluations in the 12 months before separation, muscle spasm was noted, but abnormal gait or spinal contour were not noted at either evaluation.  

During the 21 May 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the CI reported lumbar numbness and discomfort with prolonged standing, running or activities involving back flexion.  Physical examination showed a normal gait.  There was lumbar muscle tenderness and spasms.  The examiner noted ROM was limited by pain with decreased flexion, extension and right rotation.  Straight leg raise testing to elicit radicular symptoms was negative.  Physical therapy performed range of motion (ROM) measurements for the MEB on 16 June 2008 (7 months prior to separation).  Thoracolumbar ROM was flexion of 100 degrees (normal 90) and combined ROM of 235 degrees (normal 240) after repetition.  The therapist noted the CI’s gait was normal and there was no localized tenderness, muscle spasm or guarding.  

The undated MEB NARSUM examination (occurred after the 16 June 2008 physical therapy visit above) noted complaints of constant pain aggravated by activity and inability to sit for longer than 10 minutes or stand for longer than 15 minutes.  Physical examination cited the same findings as noted on the DD Form 2808 and physical therapy examinations summarized above.  

At the 29 April 2009 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported constant pain across the lower back, without radiation or bowel or bladder problems.  His back pain was aggravated by bending, lifting, prolonged walking or prolonged standing.  He was never absent from work due to the back condition aside from his medical appointments.  Physical examination showed a normal gait and normal posture.  The VA examiner noted the use of an assistive device, without further explanation.  Back ROM was flexion of 65 degrees with pain at 45 degrees and combined ROM of 205 degrees.  With repetition, there was “slight limitation of flexion of 55 degrees.”  There were no neurological deficits.  The VA examiner estimated that “during flare-ups or repetitive use,” forward flexion was limited to 55 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5238 (spinal stenosis), citing tenderness and spasm.  The VA rated the back condition 20%, coded 5237 (lumbosacral strain), citing painful and decreased ROM.

The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as frequently documented during active duty at physical therapy and primary care visits in the STR in the 12 months before separation and reported on the VA examination 3 months after separation.  The physical therapy ROM evaluation, 7 months before separation, noted full thoracolumbar ROM, but the MEB Form 2808 and MEB NARSUM examinations noted decreased and painful flexion, extension and right rotation without quantitation which did not help to discriminate between the 10% and 20% ROM rating criteria.  Based on the evidence of record, the thoracolumbar flexion was frequently limited to 60 degrees or less in the year before separation and was again found to be less than 60 degrees at the VA examination.  The panel majority concluded that the disability due to the back condition more closely approximated the 20% rating criteria than the 10% IAW VASRD §4.7 (higher of two evaluations).  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 5238.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5238 IAW VASRD §4.71a.  The single voter for dissent recommends no change, but does not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

Therefore, 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	
Spinal Stenosis, Lumbar Region	5238	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170525, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006653, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure