RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05616
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Police, medically separated for “degenerative arthritis of the spine” with a disability rating of 20%.  

CI CONTENTION:  “During the range of motion test the examiner made sure to help me bend a little further to have over the required ROM (range of motion) for retirement.”  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 - 20090724	VARD - 20091201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine	5242	20%	Lumbar Degenerative Arthritis and Scoliosis with IVDS	5242	20%	20090921	
Thoracic and Lumbar Scoliosis	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in February 2006 after no specific injury, with the CI attributing the pain to “cumulative stress of wearing his equipment aggravated his back pain.”  He was treated with naproxen, Flexeril, Ultram, physical therapy, medial branch block or facet block, and radiofrequency denervation or dorsal rhizotomy procedures with little to no benefit.  MRI of the thoracic spine, on 18 July 2008 showed mild dextro-convex scoliosis, but no other abnormality.  X-rays on 23 September 2008 showed levoscoliosis curvature to the spine and osteoarthritic degenerative changes in the lumbar spine.  

During the 11 May 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, physical examination showed normal gait and the CI could walk on his heels and toes.  There was tenderness over the posterior superior iliac spines and the L5 spinous process.  The CI had pain with Patrick's and Gaenslen's (painful motion) tests with a negative straight leg raise (SLR) test.  The neurological evaluation was unremarkable in the lower extremities with normal motor, sensory, and reflex evaluations.  ROM demonstrated flexion to 35 degrees (normal 90) and combined ROM of 160 degrees (normal 240), limited primarily by pain and tightness.  

The 17 June 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant back pain described as 4/10 in intensity, and at times it reached a 8/10.  The CI denied radiation of pain and any neurological symptoms.  Activity such as prolonged standing or sitting, or vigorous physical activity would aggravate his back.  The NARSUM narrative referenced the above 11 May 2009 physical examination for objective findings of the back.

At the 21 September 2009 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported constant, severe, low back pain with stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness.  The pain was exacerbated by physical activity and relieved with rest and Gabapentin (neuroactive medication).  At the time of pain, he was able to function with medication.  During flare-ups, he experienced trouble with daily activities and limitation of motion described as trouble with bending.  The CI reported no periods of incapacitation.  Physical examination showed normal gait and posture and no muscle spasm.  There was tenderness of the lumbar spine noted.  There was no guarding of movement or weakness and a negative SLR test on the right and left.  Painful ROM was flexion of 60 degrees and combined ROM of 210 degrees after repetition.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 20%, coded 5242 (degenerative arthritis of the spine).  The PEB cited tenderness and flexion 35 degrees.  The VA based the rating on the STR and C&P examinations, citing flexion to 60 degrees.

The VA examination was prior to and closest to separation, documented repetition and addressed all DeLuca criteria, and was therefore adjudged to have the highest probative value for rating at separation.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the MEB NARSUM and VA examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes, which would provide for a higher rating under that formula.  

The PEB also listed thoracic and lumbar scoliosis as a not unfitting condition.  Any impairment from the thoracic and lumbar scoliosis was properly subsumed under the overall rating for the unfitting spine condition, under the general rating formula for the spine and IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The panel concluded there was no evidence to support a rating higher than that adjudicated by the PEB.  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 degenerative arthritis of the spine 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.  

ARXXXXXXXXXXX,XXXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXXXXXX:

	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.