RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXXXX	CASE: PD-2019-00401
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20040416

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, DG-9760-Electrical/Mechanical Equipment Repairman, medically separated for “chronic minimally radiating lower back pain [LBP]” with a disability rating of 10%.

CI CONTENTION: “Suffered low back injury which resulted in Med Discharge and inability to remain active duty. 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 - 20040309	VARD - 20040629	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5237	10%	Degenerative Disc Disease, Lumbar
Spine with Bilateral Leg Pain	5237	40%	20040323	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

LBP. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in January 2003 after lifting heavy gear. A lumbar spine MRI on 4 March 2003 showed an L5-S1 bulge but surgery was not indicated. Despite physical therapy (PT) and limited duty, the LBP did not resolve. During a family practice visit in January 2003, measured flexion was to 20 degrees (normal 90 under VASRD 2004 general spine rules) and combined range of motion (ROM) was 50 degrees (normal 240). An immediate care examination on 17 April 2003, 12 months before separation, documented normal spine alignment and curvature, but back ROM was “limited,” particularly for forward flexion (not quantified), and painful motion was not addressed. At an orthopedic consult on 28 April 2003, flexion, extension and lateral side bend ROM was limited secondary to pain (not quantified). During a PT visit in May 2003, the CI reported LBP, and the provider noted spinal tenderness and back flexion to approximately 15 degrees (combined ROM was incomplete).

The 12 January 2004 MEB NARSUM examination, 3 months prior to separation, recorded CI complaints of “80% back, 20% bilateral leg pain” down to the knees. Physical findings showed lumbar spine tenderness, negative straight leg raise testing, and normal lower extremity motor strength, sensation, and reflexes; ROM was not addressed.

At the 23 March 2004 VA Compensation and Pension (C&P) examination, less than a month before separation, the CI reported severe and disabling back pain. The examiner noted that posture and gait were “apparently normal except they appeared to be limited by his inability to have flexion of the back.” While there was no spine tenderness, paraspinal musculature was more significant on the right and appeared “to be the result of spasm.” Lumbar spine flexion was to 20 degrees and combined ROM was 100 degrees; painful motion was not addressed, but the CI could not perform repetitive motion Deep tendon reflexes and lower extremity light touch and pinprick testing were equal and physiologic.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain). The VA rated the low back condition 40%, coded 5237, based on the C&P examination, citing limitation of forward flexion. The panel majority agreed that the STR spine ROM examinations showed “severe” limitation of motion for a 40% rating under the interim general spine rules from 23 September 2002 to 25 September 2003; and conceded that the CI could not perform thoracolumbar ROM as he was not able to perform flexion as noted above. Under the VASRD 2004 general spine rules that came into effect on 26 September 2003, the panel majority agreed that a 40% rating was also justified for limitation of flexion not greater than 30 degrees, as recorded at the comprehensive VASRD spine examination, which was most proximate to separation. Additionally, the family practice, immediate care, orthopedic, and PT ROM examinations all corroborated forward flexion of less than or equal to 30 degrees, and the STR documented chronic antalgic gait, and paravertebral tenderness and spasm findings that also warranted the 40% rating.

The panel noted the CI’s radiating back pain was subsumed under the 2004 VASRD general spine rating criteria…“with or without symptoms such as pain (whether or not it radiates).” As there was no objective evidence of a radiculopathy with functional impairments (such as weakness) or performance-based evidence that this condition significantly interfered with satisfactory duty performance at separation, panel members agreed that an additional service rating for an associated spinal radiculopathy was not justified. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the low back condition, coded 5237.

BOARD FINDINGS: In the matter of the low back condition, the panel majority recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a. The single voter for dissent submitted the appended 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Minimally Radiating Lower Back Pain	5237	40%	

MINORITY OPINION: The minority panel member strongly dissents from the majority recommendation of a permanent 40% rating, and asserts that the CI’s low back condition warrants no higher than a 20% rating, coded 5237 based on the preponderance of objective evidence which overlapped the timeframe of the VASRD interim and current spine rule guidelines. The current spine rules, in effect at the time of the CI’s separation, were based on limitation of thoracolumbar spine or incapacitating episodes. However, the STR and VA records did not provide a single thoracolumbar ROM measurement. “Back” and “lumbar” measurements were consistently reported, and while the panel majority determined the C&P examination was the most probative, the VA examiner specifically documented “lumbar spine” and not thoracolumbar ROM. The VA rating decision actually cited criteria from the interim spine rules stating “marked limited ROM” and subjective symptoms of severe back pain as the rationale for a 40% rating. There were no incapacitating episodes in evidence for rating consideration, and ROM recorded during the service examinations was performed when the interim spine rules were in effect, with lumbar and dorsal spinal rather than thoracolumbar ROM measured.

No ROM measurements were provided at the MEB examination, but the provider noted L5-S1 region tenderness with normal strength and reflexes. The NARSUM examiner also did not document any ROM measurements, but motor strength, sensation and reflexes were all also normal, and “diffuse” lumbar tenderness was recorded. The CI reported subjective pain, rated at 8/10, however the examiner stated he was in no acute distress. The presence of tenderness and subjective complaints of pain were noted on many other examinations, thus a rating of 10% was justified at a minimum. On 31 January 2003, 4 months prior to separation, X-ray findings revealed “virtually nonexistent lumbar lordosis apparent developmental anomaly underdeveloped spinoses process @ T11,” no fractures, spondylolisthesis or spondylolysis, and mild flattening of the normal curvature of the lumbosacral spine with no significant degenerative disc disease (DDD). An MRI on 4 March 2003 showed a small bulge at L5-S1.

The C&P examination specifically focused on the lower back and noted normal posture, gait, and coordination with “lumbar spine ROM” measurements. Additional findings showed no specific area of tenderness and that “the right paraspinal musculature was significantly more firm than the left which would appear to be the result of spasm.” Lumbar spine X-rays revealed no DDD, spondylolysis or spondylolisthesis, but thoracolumbar spine straightening was present. The CI reported his back pain was so severe and disabling that he was unable to do any form of physical activities whatsoever. He also stated that spasms limited him to very brief forward and backward movements and he could not perform repetitive motion at all because of pain. The presence of muscle spasm did not affect gait, but conceivably the spasms were severe enough to affect spinal contour as noted on X-rays. Therefore there was sufficient reasonable doubt (§4.3) in favor of the CI to support a 20% rating.

Both the PEB and the VA used VASRD code 5237 (lumbosacral strain) and the panel majority recommended a 40% rating based on VA ROM measurements which were not thoracolumbar as required by the VASRD (§4.71a, Plate V). The VA examiner was very specific in noting lumbar spine ROM with flexion to 20 degrees (60 degrees is normal for isolated lumbar flexion without inclusion of thoracic motion). The panel majority also cited STR findings of chronic antalgic gait, paravertebral tenderness, and spasms to support a 40% rating, but the preponderance of evidence does not show this to be the case. The only examination with findings of an antalgic gait with spasm was in January 2003, which was 15 months prior to separation and not relevant in assessing a rating at the time of separation. Spasms were noted at the April 2003 orthopedic consult, but there was no abnormal gait recorded on this examination. The C&P examination did cite spasms, but gait was normal. According to VASRD guidelines, the preponderance of evidence did not indicate muscle spasm severe enough to result in an abnormal gait.

The panel discussed at length the ROM findings found in evidence. In addition to not having a single documented thoracolumbar ROM measurement, the STR contained concerns by several different providers regarding subjective reports of pain from the CI. Specifically, on 2 May 2003

the PT provider noted the CI reported a constant pain level of 10/10 and questioned this by documenting “10/10??” The examiner also highlighted the questionable 10/10 pain with “every” motion by underlining the word “every” two times, and additionally highlighted “UNABLE to localize pain” by capitalizing and underlining the word. The examiner further stated “pain should be relieved with extension, but is not.” Numerous examinations noted the CI was in no acute distress despite his subjective reporting of 8/10 or higher levels of pain. The orthopedic examiner on 7 May 2003 noted the CI was in no acute distress with normal gait, reflexes, and motor strength, and stated “expect FFFD (fit for full duty) when transfer in August 2003” with emphasis again added by underlining. Despite the subjective reports of 8-10/10 pain levels, there was no evidence of incapacitating episodes and the non-medical assessment reported an average of 3 hours of work missed per week for treatment and/or recuperation, which was not consistent with the pain levels reported by the CI.

Thoracolumbar spine measurements were not in evidence to rate IAW VASRD guidelines, and the documented lumbar ROM was not consistent with the diagnostic and clinical pathology in evidence nor were ROM limitations corroborated by objective findings. The CI’s failure to attempt spine excursion to full painful limits does not meet an acceptable standard for a ratable measurement. The preponderance of evidence noted the presence of subjective painful motion, tenderness, muscle spasm and guarding without an altered gait and no vertebral body fracture with height loss of 50% or more. There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.

Normal thoracolumbar ROM is 90 degrees (60 lumbar and 30 thoracic), and a 20% rating requires limitation of flexion greater than 30 degrees but not greater than 60 degrees. The only lumbar ROM measurement proximate to separation recorded flexion to 20 degrees. It is more likely than not, with thoracic motion included, that the flexion would increase to greater than 30 degrees and the combined ROM would not be greater than 120 degrees. Additionally, the minority member concluded there was sufficient reasonable doubt (§4.3) in favor of a 20% based on the VA examination with spasm and straightening of the thoracolumbar spine. The overall disability picture most nearly approximated a 20% rating.

After separation, the CI did not establish care with the VA until 1 September 2005, and at that time, records indicated he was working (DJ at a bar), was a martial arts student (later went on to be an instructor), and attended school full-time. The CI later reported he worked as a police officer.

After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends a disability rating of 20% for the low back condition, coded 5237. There are no other conditions within the panel’s scope of review for consideration.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Minimally Radiating Lower Back Pain	5237	20%	

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO
6040
CORB:003 14 May 21

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXXXXXXXX

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	On 23 April 2021 the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the PDBR’s recommendation of an increase in disability rating to 40% and placement on the Permanent Disability Retired List. This decision was then sent to Navy Personnel Command for appropriate action.

3.	The PDBR determination is final and not subject to appeal or review.