RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXX	CASE: PD-2017-05034
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20050404

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Cavalry Scout, medically separated for “chronic subjective back pain secondary to degenerative disc disease (DDD), without neurologic abnormality” with a disability rating of 10%.

CI CONTENTION: “My right foot has given me issues since the surgery; it is causing a limp some days and I’m looking into a second surgery in 2018. Also, my back gives me pain daily, which radiates to my left hip. I don’t think the worsening nature of these issues were factored into the initial rating.”  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 - 20050303	VARD - 20050912	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain, Secondary to DDD, without Neurologic Abnormality	5299-5242	10%	DDD of Lumbar Spine	5243	20%	20050517
20050810	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Chronic Subjective Back Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in April 2003 while on deployment to Iraq. Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT)

on 7 February 2004,14 months prior to separation, showed flexion of 80 degrees (normal 90) and combined ROM of 185 degrees (normal 240). Painful motion was noted in all planes. MRI of the lumbosacral spine on 11 August 2004, 8 months prior to separation, revealed the vertebral bodies were within normal limits in their size, shape, alignment and signal characteristics. The upper lumbar subarachnoid space and conus medullaris were normal in appearance. There was some mild disc bulging at L1 and L2 but no significant compression of the thecal sac or nerve roots. There was mild facet arthropathy also noted at L1 through L3 and no central or foraminal stenosis. At the time of the PT clinic appointment on 13 August 2004, 8 months prior to separation, the CI reported low back pain (LBP). On examination there was tenderness at the L2- L5 spinous process. Strength was 5/5 in all lower extremities except for the hip, which was 4+/5 and caused mild LBP. Sensation was intact and the straight leg raise (SLR) test was negative. Lumbar spine ROM showed flexion was within normal limits and extension was decreased 50% with painful motion noted.

The 17 February 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of low back pain and multilevel degenerative disc disorder. Physical examination showed the CI had “slightly limited ROM in his back measuring about 85 degrees flexion with mildly limited rotation and flexion to the left or right.” He had full extension capability of his back and mildly limited side bending.  The rest of his physical examination was unremarkable.

At the 17 May 2005 VA Compensation and Pension (C&P) examination, one month after separation, the CI reported LBP rated 5/10 in severity with flares to 7-8/10 with activity . Standing 25 minutes or walking three blocks or more aggravated the back. He avoided lifting and would not drive more than 45 minutes. He had no incapacitation over the last 12 months due to his low back problem. Physical examination showed the SLR test was negative bilaterally and deep tendon reflexes were 2/4 at the knee and ankle bilaterally. Thoracolumbar ROM showed flexion of 25 degrees and combined ROM of 130 degrees. It was noted ROM in all planes produced severe subjective pain. The pain was in the low back without radiation. There was no additional limitation with repetitive use or additional limitation with flare-ups. There was no spasm, no weakness and no tenderness. Neurological findings were normal. At the 10 August 2005 C&P examination, 4 months after separation, the CI reported LBP rated 4/10 at rest and 10/10 with activity. He had no incapacitation over the last 12 months because of his back problem. Physical examination showed sensation to pinprick and vibratory stimulation of the legs was normal and his gait was normal. There was no scoliosis. Thoracolumbar ROM showed flexion of 45 degrees and combined ROM of 175 degrees. ROM in all planes produced mild discomfort. There was no additional limitation following repetitive use or additional limitation during flare-up. There was no tenderness, no spasm, no weakness and no incoordination. The neurological findings were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, analogously coded 5242 (degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain. The VA rated the low back condition 20%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination, citing flexion limited to 45 degrees. The panel noted that the limitation of thoracolumbar motion recorded in the May 2005 C&P examination met the threshold for a 40% rating. However, the August 2005 VA examination, 4 months after separation, was more consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology. The panel majority therefore placed greater probative value on the August 2005 VA examination measurements, and agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees). There was no documentation of IVDS 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 low back condition, coded 5299-5242.

BOARD FINDINGS: In the matter of the low back condition, the panel majority recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a. The single voter for dissent recommends no change and did not elect to submit a minority opinion. 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 Subjective Back Pain	5299-5242	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 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