RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX.	CASE:  PD-2017-04542
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Cavalry Scout, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  In addition to his unfitting back condition, the CI requests review of nerve damage, degenerative disc disease and posttraumatic stress disorder.  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 - 20051024	VARD - 20060223	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	Degenerative Disc Disease at L4 and L5 	5242	20%	20060206	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 2005 after being “bounced around inside a Humvee” while deployed.  A lumbar spine MRI revealed a herniated lumbar disc at L5-S1.  A 16 September 2005 patient progress note, 2 months prior to separation, indicated the CI was feeling better.  The range of motion (ROM) evaluation showed flexion of 110 degrees (normal 90) and combined ROM of 235 degrees (normal 240).  The examiner recorded the CI “tolerated well and demonstrating independence with physical therapy exercises.”  

At the 29 September 2005 MEB NARSUM examination, 2 months prior to separation, the CI stated “my back hurts.”  Physical examination showed a normal gait and he was able to heel and toe walk without difficulty.  There was minimal tenderness and no spasms, neurosensory changes or pathological reflexes.  The ROM evaluation showed flexion of 100 degrees and combined ROM of 240 degrees with pain.    During the 22 November 2005 family medicine clinic, one day prior to separation, the CI presented for a pre-employment physical.  He was doing well, except he was still having chronic back pain with certain activities.  Physical examination revealed some tenderness in the lumbar area and good ROM in all planes of movement.  Straight leg raise testing was equivocal, but the neurological examination was intact and there was no edema of the lower extremities.  The physician stated the CI was able to work.  

At the 6 February 2006 VA Compensation and Pension (C&P) examination, approximately 2 months after separation, the CI reported low back pain.  He was employed as a police officer.  Physical examination showed a normal gait and he was able to heel and toe walk without difficulty.  There was no tenderness or spasm.  Straight raise testing was positive to 70 degrees bilaterally without pain.  Deep tendon reflexes were normal.  Thoracolumbar active ROM measurements were flexion of 75 degrees and combined ROM of 225 degrees with pain.  

The 24 March 2006 neurosurgery clinic note, 4 months after separation, indicated the CI still working as a policeman despite having back pain.  His back condition was aggravated with prolonged sitting or running.  The neurosurgeon stated imaging revealed some degree of degeneration of the lumbar discs, which was not unusual for a person of his age.  There was mild bulging of the L5-S1 disc, but there was no compression of any nerve root at any point through the spinal canal nor the neural foramen.  The examiner proclaimed the CI did “not require surgical intervention, he [did] not need a neurosurgeon, [but needed] to continue on his lifestyle, working, exercising and keeping himself fit.”  

The panel notes various back related diagnoses contributing to the disability in this case, which include: “chronic back pain, with L5-S1 herniated nucleus pulposus without neurologic abnormality” and degenerative disc disease.  Panel members agreed that these were not separate conditions, which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  The “lower back nerve damage” was not profiled, implicated in the commander’s statement or judged to fail retention standards.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance at separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.” The panel notes this did not align with the actual forward flexion measurement of 75 degrees recorded at the VA C&P examination.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on examinations proximate to separation.  The presence of tenderness also warranted a 10% rating, but this provided no rating advantage to the CI.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended nerve damage condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

[AR Number], XXXXXXXXXX. 

DearXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.