RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:	CASE: PD-2017-05850
BRANCH OF SERVICE:  ARMY	SEPARATION DATE: 20021003

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Military Policeman, medically separated for “low back pain” with a disability rating of 10%.

CI CONTENTION: The VA provided a higher rating and he should have been medically retired. 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 – 20020806	VARD - 20021023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5293	10%	Disc Bulging and Degenerative Disc Disease, Lumbar Spine	5292	40%	20020814	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Low Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 1995 without any specific trauma or injury. An MRI in July 2001 showed disc herniations at L3-4 and L4-5, a disc protrusion at L2, and an annular bulge at T12-L1, but electrodiagnostic studies were normal and the neurosurgeon did not think surgery would likely improve the pain. During the 23 April 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, physical examination revealed good muscle strength and negative straight leg raise testing. The 28 May 2002 MEB NARSUM examination noted complaints of low back pain and the inability to run, lift weights or sit for prolonged periods in a patrol car. The examiner noted full lumbar spine flexion, extension to 5 degrees, and left rotation to 35 degrees. Muscle strength was good with no neurologic deficits.

At the 14 August 2002 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant low back pain with lumbar symptoms that required bedrest about twice a month and lasted about 4-5 days each episode. Physical examination showed an

abnormal gait and pain radiating down the left hip and leg. Lumbar spine range of motion (ROM) testing showed flexion to 30 degrees (normal 60), extension to 15 degrees, right and left lateral flexion to 40 degrees and right and left rotation to 35 degrees. Lower extremity motor strength, sensation and reflexes were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5293 (intervertebral disc syndrome) citing no neurologic or electrodiagnostic abnormality. The VA rated the low back condition 40%, coded 5292 (limitation of lumbar motion), based on the C&P examination, citing pain on thoracic spine movement, signs of radiculopathy with f pain sensation radiating down the left hip and leg to the ankle, and “lumbar flexion limited to 30 degrees (95 degrees is within normal limits), extension limited to 15 degrees (35 degrees is within normal limits), right and left lateral flexion and right and left rotation within normal limits, and ROM additionally limited by pain, but not by fatigue, weakness, lack of endurance or incoordination.” There was a change effective 23 September 2002 for rating under VASRD code 5293. The old standards were based on ROM impairment and subject to the rater’s opinion regarding degree of severity, whereas the new standards reflected the duration of incapacitating episodes. Despite the CI’s claim of 4-5 days of bedrest twice a month for the back condition, there was no record of an order for quarters or bed rest after review of the STR. Therefore, a 10% rating under the September 2002 VASRD was not supported under code 5293. Although the VARD indicated normal lumbar ROM was 95 degrees, the normal ROM for “lumbar” flexion is 60 degrees (95 degrees was normal for “thoracolumbar” flexion). Therefore, the flexion measurement recorded at the C&P examination represented a 50% reduction in motion, which is reflective of moderate limitation under code 5292 and warrants a 20% rating based on ROM evidence from the C&P examination, which was closest to separation. 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 5292.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends a disability rating of 20%, coded 5292 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	
Low Back Pain	5292	20%	

The following documentary evidence was considered:

2	PD-2017-05850

AR20200004355,

Dear	:

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

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.

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