RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04780
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic back pain” with a disability rating of 0%.   

CI CONTENTION:  The CI contended for migraines and lower lumbar L4/L5 S1 conditions.  The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060928	VARD - 20070210	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	0%	Degenerative Disc Bulging and Protrusion, Thoracolumbar Spine	5242	10%	20060609	
Migraines	Not Unfitting	Migraines	8100	0%	20060609	
COMBINED RATING:  0%	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 chronic back pain began in April 2005, during an Iraq deployment, after the CI fell from the back of a 5-ton vehicle.  Over the next 18 months, the CI underwent a course of conservative treatment and received facet injections; however, she continued to experience worsening symptoms.

At the April 11, 2006 physical medicine examination, 9 months prior to separation, the CI complained of 5/10 pain (with 10 being the worst pain) at rest, with pain ranging from 3-8/10.  The examiner noted the CI was not a surgical candidate according to orthopedics.  Physical examination revealed thoracolumbar tenderness and muscle spasms.  There was normal appearance of the spine.  Neurologic examination was essentially normal.  The chiropractic consult on 24 April 2006, 8 months prior to separation, showed full active range of motion (ROM) of the thoracolumbar spine with painful motion documented during flexion, extension, and bilateral side bending.  

The 17 May 2006 MEB NARSUM examination, 7 months prior to separation, noted the CI could not drive for longer than 20 minutes without stopping to get out and change her sitting position or stretch.  There was sleep disturbance due to her back pain.  There was limitation to activities of daily living and recreational activities.  Physical examination of the lumbar spine showed no tenderness or muscle spasms.  ROM of the lumbar spine, performed by physical therapy, documented forward flexion of 85 degrees (normal 90) with pain and combined ROM of 230 degrees (normal 240). 

During the 9 June 2006 VA Compensation and Pension (C&P) examination, 6 months before separation, the CI reported low back pain caused by exercise, movement and driving.  Pain was relieved with medication and rest.  Flare ups would occur daily, last for 2-3 hours and cause pain level to increase to 9 out of 10.  Physical examination showed a normal gait and posture with no aids required for ambulation.  There was no tenderness or muscle spasm present.  ROM of the lumbar spine was normal, as was muscle strength.  An August 8, 2006 MRI revealed a small focal left paracentral disc protrusion at the L4-L5 vertebra.

At the 29 August 2006 chiropractic examination, 4 months prior to separation, the CI noted her lower back pain was worse when sitting or when going from a sitting to standing position.  Pain also occurred with standing, lifting, lying down and turning; and was relieved by shifting positions and also with heat and medication.  Physical examination showed full ROM of the thoracolumbar spine, with tenderness.  The lumbosacral spine exhibited muscle spasms.  At the deployment health clinic examination on 13 September 2006, 3 months prior to separation, physical examination showed the thoracolumbar spine had no abnormalities, although the CI complained of low back pain.  The 6 October 2006 physical medicine and rehabilitation examination showed painful motion of the lumbosacral spine with muscle spasms and tenderness present.  The lumbosacral spine was normal in appearance.  Examination of the thoracic spine showed tenderness to palpation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain 0%, analogously coded 5299-5237 (lumbosacral or cervical strain), citing ROM limited by pain.  The VA rated the low back pain 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing evidence of spasms at the thoracic and lumbar spinal regions, as well as painful movement.  There was limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine.  In addition, multiple examinations in evidence noted the presence of painful motion and/or localized tenderness and/or muscle spasm supporting a 10% rating.  Muscle spasm was present on the multiple examinations, however there was not an associated abnormal gait or abnormal spinal contour to support the next higher rating of 20% (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  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 recommends a disability rating of 10% for the chronic back pain, coded 5242.  

Contended PEB Condition:  Migraines.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.    

BOARD FINDINGS:  In the matter of the chronic back pain, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended migraine condition, the panel recommends no change from the PEB determinations as not unfitting.  

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	5242	10%	

The following documentary evidence was considered:

[AR NUMBER], 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.

Enclosure