RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX.  	CASE:  PD-2017-04555
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050829

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

CI CONTENTION:  “My condition has worsened and I have developed depression as a result.”   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 – 20050708	VARD – 20050926	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5299-5237	10%	Degenerative Disease, Thoracolumbar Spine	5242	10%	20050715	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in August 2004 after lifting heavy batteries.  An MRI on 22 April 2005 showed disk bulges at L2 through S1 with no significant encroachment on the spinal canal or neuroforamina.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 24 May 2005 showed flexion of 40 degrees (normal 90) and combined ROM of 145 degrees (normal 240), after repetition.  Although the therapist noted the CI expressed discomfort with movement in all planes of motion and was reluctant to perform any flexion of his spine, the CI was able to remove and put on his socks and shoes with blank facial expression and no indication of pain and while seated the CI reached down and touched his toes with blank facial expression.  Gait was noted as slightly antalgic and guarded.  

During the 1 June 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported chronic low back pain.  On examination, there were no radicular signs, neurologic deficits, spasm or atrophy and the CI could heel and toe walk. The CI reported pain with examination maneuvers which would not be expected to elicit pain, based on the known pathology.  The MEB NARSUM examination, on the same day, showed no muscle atrophy or spasm of the paraspinal muscles.  The CI was able to heel walk and toe walk without difficulty.  The examiner referred to the PT ROMs noted above.  The examiner stated the CI demonstrated an exaggerated antalgic gait on examination.  

At the 15 July 2005 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported constant 8.5/10 low back pain.  Physical examination showed a normal posture and gait.  There was no muscle spasm, tenderness or radiation of pain on movement.  Straight leg raise testing was normal.  Thoracolumbar spine ROM measurements showed flexion of 80 degrees and combined ROM of 190 degrees.  Joint function was not additionally limited after repetitive use.  X-rays of the lumbar spine showed intact disc spaces without arthritic changes.

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 thoracolumbar ROM limited by pain.  The VA also rated the thoracolumbar spine condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and combined ROM greater than 120 degrees but not greater than 235 degrees.    

The panel noted that the limitation of thoracolumbar motion recorded in the MEB NARSUM examination met the threshold for a 20% rating. However, the significant PT ROM limitations based on subjective pain responses were not corroborated by objective findings.  Panel members discussed the possible refusal to attempt thoracolumbar spine excursion to full painful limits which does not meet an acceptable standard for a ratable measurement.  The panel also considered if the examination by PT was consistent with a flare of back pain that responded to treatment, resulting in improved ROM closer to separation. Panel members agreed the VA examination was more consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology.  Therefore, based on all the evidence and the associated conclusions just elaborated, panel consensus was that preponderant probative value should be assigned to the VA ROM 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 combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the VA examination.  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 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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. 

Dear XXXXXXXXXX:

	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.