RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxx	CASE:  PD-2017-05512
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061230

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

CI CONTENTION:  No specific contention was made.  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 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 - 20060925	VARD - 20070413	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbar Spinal Stenosis	5238	10%	20070303	
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 pain began as early as February 1999 with no specific injury or trauma identified.  Radiographic studies performed in November 2005 showed developmental spine abnormalities and degenerative changes to the lower spine.  During the 21 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported constant radiating back pain that prevented exercise.  Physical examination revealed normal gait and posture as well as neurologic function.  The spine was tender, and range of motion (ROM) was recorded as “limited…in all directions due to pain.”  The 31 July 2006 MEB NARSUM examination, 5 months before separation, noted complaints of ongoing back pain, rated at 7/10, that prevented physical activity and exercise, with continued lower back muscle spasm.  Physical examination showed normal gait, posture, and neurologic functioning.  The examiner referenced ROM measurements performed by physical therapy for the MEB, which recorded flexion to 50 degrees (normal 90) and combined ROM of 180 degrees (normal 240).  All limitations of motion were attributed to pain and repeated three times.  The NARSUM (and MEB) diagnoses were mild diffuse disc bulge L5-S1, low back pain, and lumbar neuroforaminal stenosis. 

At the 3 March 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported intermittent, low back pain that he treated with over-the-counter pain medication.  Physical examination showed a normal gait with mild spine tenderness but no muscle spasm.  Measured ROM revealed flexion to 80 degrees combined ROM was 230 degrees, with painful motion noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5237 (analogous to lumbosacral strain), noting normal gait and contour, but “motion limited by pain,” and citing “rated for spasm,” with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion.  The VA also rated the low back condition 10%, but coded 5238 (spinal stenosis), based on the C&P examination, citing VASRD rating criteria.  The panel majority agreed that the post-separation VA examination was closest to separation and thus had the greatest probative value, with a 10% rating, but no higher, 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).  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 low back condition.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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.  

Minority Opinion.  The minority voter strongly recommends a rating of 20% as supported by the MEB PT examination.  The PEB’s rating of the NARSUM almost certainly applied Army-specific rating rules (AR 635-40, B-29) which were clearly not in compliance with VASRD guidelines and rating criteria.  Congress and the DoD created the PDBR specifically to allow disability appeals and correction of Service rating errors using VASRD-only rating criteria.  Rating the high quality STR evidence (thoracolumbar ROM repeated three times) supports a 20% back rating for forward flexion of 50 degrees (forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees) IAW VASRD §4.71a.  

The panel majority’s sustaining of the PEB’s incorrect (non-VASRD compliant) 10% spine rating based on the post-separation VA examination, which showed some improvement in back flexion, incorrectly speculates that the CI’s improvement occurred prior to separation, and does not rate the STR on VASRD-only criteria.  Additionally, taking a longer-term picture of the CI’s disability picture would also support the 20% rating as later VA examinations and ratings also supported a 20% back rating, and indicates that the initial post-separation VA examination was an outlier to the preponderance of the evidence.  

Considering all the evidence and rating the STR evidence IAW VASRD criteria, the minority voter strongly recommends a disability rating of 20% for the back condition, coded 5299-5237.  

Therefore, the CI’s prior determination should be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5299-5237	20%	

ARXXXXXXXXXXX, XXXXXXXXXX

Dear XXXXXXXXX:

	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.