RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04909
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070508

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

CI CONTENTION:  “Since 2007 I have back pain (severe).  Disc problems, sciatica.”  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 - 20070123	VARD - 20070815	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Intervertebral Disc Degeneration Lumbar Spine	5243	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in May 2004 after lifting heavy equipment.  X-rays demonstrated disc herniation at L5-S1 with narrowing of the proximal right S1 lateral recess.  A neurosurgical evaluation on 2 February 2005 noted the CI ambulated normally and was able to sit in a chair and rise from it easily and was able to get on the examination table without any difficulty.  His lumbar spine was not tender and straight leg raising (to determine nerve root irritation) was negative.  An MRI showed a small annular tear at L5-S1 with mild stenosis in the right lateral recess, which was probably compressing the S1 nerve root.  Surgical options were discussed, but the CI declined.  At the orthopedic clinic visit on 27 June 2006 the CI had tenderness bilaterally in the low back in the region of the sacrum and upper lumbar spine, but was able to forward flex to 160 degrees (normal 90) and had pain with radiation with axial rotation.  The 14 November 2006 physical therapy range of motion (ROM) evaluation, 6 months prior to separation, showed forward flexion of 15 degrees and combined ROM of 120 degrees (normal 240), after repetition.  Pain before ROM testing was 8/10, but increased to 10/10 after ROM testing.  Measurements were taken with inclinometers and a goniometer.  “Guarding/resistant” with passive ROM was “due to pain.”  

The 5 December 2006 MEB NARSUM examination, 5 months prior to separation, noted low back pain without bowel or bladder dysfunction.  Physical examination showed normal muscle strength in the lower extremities.  Pain radiated with axial rotation, but no pain was observed with axial compression.  Tenderness was noted in the lower back bilaterally in the region of the sacrum and upper lumbar spine, especially in the paraspinal musculature.  The CI was able to forward flex to 160 degrees.  Deep tendon reflexes were equal and symmetric.  Straight leg raising was negative.  Sensation was normal in the lower extremities.

At the 3 March 2008 VA Compensation and Pension (C&P) examination, 10 months after separation, the CI reported constant low back pain, stiffness with movement and weakness after walking the stairs.  Physical examination showed normal gait and spine curvature, but there was spasm and tenderness.  The ROM evaluation showed flexion of 45 degrees and combined ROM of 180 degrees.  Joint function was not additionally limited with repetition.  There was no signs of an intervertebral disc syndrome with chronic and permanent nerve root involvement.   Complete lumbosacral spine X-rays dated 18 April 2008 were within normal limits.  

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 limited ROM with pain.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the VA examination, citing forward flexion of 45 degrees.  Members noted that the physical therapy examination performed by a physical therapy assistant with an inclinometer and goniometer noted flexion of 15 degrees, while examinations by an orthopedic surgeon found flexion to be 160 degrees.  However, the examinations are not particularly in concert with imaging or clinical findings.  Members considered the possibility that the flexion of 15 degrees may have been a lumbosacral flexion measurement (normal 60 degrees) rather than a thoracolumbar measurement; therefore, the 15 degrees of lumbar flexion would convert to 45 degrees of thoracolumbar flexion.  The VA examination, performed 10 months after separation, found flexion to be 45 degrees, albeit there was no reported accident, injury or surgery reported to account for the disparity from the NARSUM examination.  Nevertheless, because the VA examination was more comprehensive and precise, panel members felt that the probative value of that examination was higher than other examinations performed prior to separation.  Therefore, a 20% rating using code 5243 is reasonable.  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 20% for the back condition, coded 5243.  

BOARD FINDINGS:   In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  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 Low Back Pain	5243	20%	

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 to 20% 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.

Sincerely,					       
						      					
Enclosure