RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05931
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20050704

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Network Switching Systems Operator/Maintainer, medically separated for “chronic low back pain” with a 0% disability rating.  

CI CONTENTION:  The CI submitted an extensive contention that his current condition and VA rated conditions deserve a higher rating than the rating the Service gave him.  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 - 20050322	VARD - 20060714	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	0%	Chronic Low Back Pain	5243	0%	20060106	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent L4-L5 and L5-S1 laminectomy and discectomy surgery in January 2001 for LBP and pain radiating into his legs.  His symptoms improved until he subsequently experienced another exacerbation which caused temporary numbness in his lower back when running.  He underwent a regimen of physical therapy (PT) and his radicular pain symptoms resolved.  A CT scan on 23 January 2003, showed mild degenerative changes, with post-surgical changes of some bone fragmentation at the L4-L5 level.  In February 2004, the CI reported an acute exacerbation with pain associated with repetitive lifting or wearing of his field gear.  During the 1 September 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported chronic LBP.  Physical examination revealed discomfort with lower back flexion, and a scar over the lumbar spine.  

The 7 October 2004 MEB NARSUM examination, 9 months prior to separation, noted complaints of persistent, mild, daily LBP with intermittent exacerbations.  He reported that he did not have radicular pain, numbness or weakness in his lower extremities, or any changes in bowel or bladder function.  Physical examination showed no tenderness over the lumbar spine.  The CI’s thoracolumbar range of motion (ROM) was documented as “noted onset of increasing discomfort with flexion of his spine beyond 40 degrees.”  Extension was measured at 20 degrees (normal 30); the CI had “full right and left lateral flexion without significant discomfort.”  There was normal (5/5) bilateral lower extremity strength, reflexes and sensation.  

At the 6 January 2006 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported he did not “have any doctors,” but indicated he had visited the emergency room for his back pain a total of 7 times since separation.  Physical examination showed intact posture and gait.  Limb strength was 4+/5.  The examiner noted that reflexes were intact and there were no sensory deficits.  There was normal spinal contour with symmetry in appearance and symmetry in rhythm of spinal motion.  Thoracolumbar ROM with a goniometer was 10 degrees flexion (normal 90) and a combined ROM of 60 degrees (normal 240).  The spine was painful on every motion and he had positive Waddell’s (non-physiologic findings which were not detailed).  Regarding DeLuca, the CI was “unable to perform the repetitive motion due to pain, fatigue, weakness and lack of endurance.  There is no objective evidence of painful motion, spasm, weakness or tenderness.  Observed range of motion is greater.”  The 16 June 2016 C&P addendum provided a clarification of the original C&P comment that the CI’s “observed range of motion was greater,” stating:  “While the patient was sitting on a chair, he bent forward and untied his shoe laces and then he sat back and flexed his legs and he removed his pant.  After the exam, while sitting on the exam table, he was able to turn to the side to get his clothes from the adjacent chair.  He was able to flex and extend his spine, perform lateral and rotation motions in a greater range of motion BUT during the repetitive range of motion exam, he displayed very limited range of motion.” [sic]

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5241 (spinal fusion), citing the “physical exam notes pain with flexion beyond 40 degrees,” and that “the current physical exam reports no ratable findings.”  The VA rated the back condition 0%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing positive Waddell’s and no objective evidence of painful motion, spasm, weakness or tenderness; and incapacitating episodes having a total duration of less than one week during the past 12 months.  

The panel noted the initial post-separation C&P examiner indicated that measured ROMs were not valid for rating and therefore relied on the NARSUM examination and STR for rating at separation.  It was noted that the VA increased the CI’s spine rating over 5 years remote from separation; however, that was adjudged as post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  

There was no valid formally measured limitation of thoracolumbar spine ROM to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine; however, the MEB and NARSUM examinations noted the presence of painful motion, and the STR documented functional limitations.  A 10% rating was therefore warranted IAW VASRD §4.40, §4.45, and §4.59.  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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008258, 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