RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX.	CASE:  PD-2021-00075
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050416

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

CI CONTENTION:  “Disability rating changed from 40% to 0%.  I believe this is incorrect and should be reevaluated.”  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 - 20050128	VARD - 20050523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5239	10%	Low Back Injury with Degenerative Changes	5242	40%	20050214	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Chronic LBP. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic low back condition began in July 2003 when he slipped in tub after physical therapy (PT) exercises.  

An MRI examination on 31 December 2003, 16 months prior to separation, showed a possible 2.5 cm mass involving the posterior elements of the L4 vertebra.  Accentuated lumbar lordosis, a posterior disk bulge and an anular tear at L4-5 vertebrae with left facet hypertrophy causing moderate left foraminal narrowing were also noted.  In July 2004, a CT scan of the lumbar spine showed no mass, however there were hypertrophic changes in the facets, particularly on the left at L4 and L5, with a pars defect on the right L5 and a spina bifida occulta at the midline of S1.

The 25 May 2004 orthopedic clinic examination, 11 months prior to separation, found the CI unable to perform military occupational specialty duties.  Physical examination noted 5/5 motor strength, a normal gait, and the CI could accomplish the toe/heel walk.
The 13 July 2004 PT clinic examination, 9 months prior to separation, showed 145 degrees (normal 240) combined range of motion (ROM) after three repetitions.  The examiner noted there was increased discomfort at the end ranges in all planes.  The 23 November 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of LBP, discomfort 50-75% of the time during waking hours, restrictions in activities of daily living and in functional activities, and disturbed sleep.  A physical examination documented an essentially normal gait with motor strength 5/5, and minimal paravertebral muscle spasm was noted. The neurological evaluation was essentially normal.   ROM testing revealed pain beginning at 15 degrees forward flexion, with CI “able to bring fingertips to approximately 60 cm of the floor.”  Discomfort was noted in all planes of motion.  Straight leg raise testing was normal, albeit productive of LBP.

During the 11 January 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported chronic LBP. Physical examination showed the CI to be obese.  ROM was “limited” with tenderness noted at L4/5 vertebrae and along the paravertebral area.  Gait was within normal limits.  Forward flexion was noted as 28 degrees (normal 90) with extension to 20 degrees (normal 30).

At the 14 February 2005 VA Compensation and Pension (C&P) general medical examination, 2 months before separation, the CI reported chronic LBP, describing his overall health as "average.”  The CI acknowledged he had gradually been gaining weight, to include 20 pounds over the prior 5 months.  The CI claimed he could sustain heavy physical activity without immediate distress.  Physical examination showed forward flexion initially to 23 degrees increasing to 35 degrees after 5 repetitions, with painful motion during repetitive motion.  Combined ROM after 5 repetitions was 140 degrees.  Straight leg raise testing was negative, lordosis was noted, and there were no paraspinous muscle spasms.  The CI was not tender to palpation over the lumbar spine, with neurovascular status to the lower extremities intact.  Other neurologic and strength testing was essentially normal.  The CI could perform toe/heel walk as well as tandem walk. The examiner diagnosed chronic lumbar strain.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5239 (spondylolisthesis or segmental instability), citing x-ray and MRI findings and both “full range of motion” as well as  “30 degrees flexion” limited by pain. The VA rated the chronic LBP 40%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing the level of decreased limitation of motion as indicated above.  

Panel members agreed, a 20% rating and no higher was justified based on combined thoracolumbar spine ROM not greater than 120 degrees at the C&P examination which was most proximate to separation, and forward flexion to 35 degrees, increased from an initial 23 degrees.  The panel considered the 145 degrees combined ROM (10% rating) recorded at the PT examination, however, it was 9 months before separation.  The panel also considered the functional statement made by the CI during the C&P examination that noted he “could sustain heavy physical activity without immediate distress.”  He had a normal gait, was not tender to palpation, and could heel and toe walk.  The MRI showed some degenerative changes with minimal disc bulging, but no evidence of herniation, or central stenosis with nerve impingement. However, the panel acknowledged the absence of goniometric measurements in the NARSUM examination which is not compliant with VASRD-specified thoracolumbar ROM, and therefore, not probative.  The panel also noted the 90 degrees of flexion with 240 degrees combined ROM recorded at the July 2007 C&P examination.  The panel concluded, the preponderance of evidence (functional, radiographic, and clinical) do not support a rating higher than 20%.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 chronic LBP, coded 5239.  

BOARD FINDINGS:  In the matter of the chronic low back pain, the panel recommends a disability rating of 20%, coded 5239 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	
Chronic Low Back Pain	5239	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20210625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

	

AR20210017361,XXXXXXXXXXXXXXXXX. 

Dear XXXXXXXXXXXX:

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,