RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200693 SEPARATION DATE: 20021008
BOARD DATE: 20121213
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (11B10/Infantryman), medically separated
for low back pain (LBP). The CI fell twenty feet from an obstacle at the air assault confidence
course, landed on his tailbone, and sustained multiple compression fractures in May 1999.
Despite an L5‐S1 fusion, Orthopedic and Pain Management evaluations, Physical Therapy (PT),
and medication, the CI failed to meet the physical requirements of his Military Occupational
Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 L3 profile
and was referred for a MOS/Medical Retention Board (MMRB). The MMRB determined the
limitations of his permanent profile were so restrictive that he could not satisfy the
requirements of any MOS in the Army and he was referred for a Medical Evaluation Board
(MEB). The MEB forwarded Severe Low Back Pain on DA Form 3947 to the Physical Evaluation
Board (PEB). The MEB forwarded no other conditions for PEB adjudication. The PEB
adjudicated Low Back Pain condition as unfitting rated 20%, with application of the Veteran’s
Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was thus
medically separated with a 20% combined disability rating.
CI CONTENTION: “Radiculopathy [SP] left/Right Lower extremity status post compression
fracture thoracic spine with degenerative disc disease P.O. fusion Lumbar spine L5‐S1/ Nerve
Pulsy [SP] ulnar [SP] Sleep Apnea”
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined
by the PEB to be specifically unfitting for continued military service; or, when requested by the
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The Service
ratings for unfitting conditions will be reviewed in all cases. The condition low back pain (P.O.
fusion Lumbar spine L5‐S1) meets the criteria prescribed in DoDI 6040.44 for Board purview.
The other requested conditions (radiculopathy
lower extremity, status post
compression fracture thoracic spine with degenerative disc disease with nerve palsy ulnar, and
sleep apnea) and the remaining conditions rated by the VA are not within the Board’s purview.
Any conditions or contention not requested in this application, or otherwise outside the Board’s
defined scope of review, remain eligible for future consideration by the Army Board for the
Correction of Military Records (BCMR).
left/right
RATING COMPARISON:
Service IPEB – Dated 20020611
Condition
Code
Rating
VA (~6 Mo. Post‐Separation) – All Effective Date 20021009
Condition
Rating
Code
Exam
Low Back Pain
5295
20%
P.O. Fusion Lumbar Spine L5‐S1
5292*
20%
20030401
↓No Addi(cid:415)onal MEB/PEB Entries↓
Status Post(S/P) Compression
Fracture Thoracic Spine with
Degenerative Disc Disease
Retro patellar Pain Syndrome,
Left Knee
Sinusitis
Diabetes Mellitus
5291**
5257
6599‐6522
7913
10%
10%
10%
10%
20030401
20030401
20030401
20030401
20030401
Combined: 20%
Not Service‐Connected x 3
Combined: 50%
*VASRD code changed to 5292‐5241 with 20091001 VA Rating Decision (VARD).
**VASRD code changed to 5291‐5237 with 20091001 VA Rating Decision (VARD). Left and Right Lower Extremity
Radiculopathy, associated with thoracic spine compression fracture added at 10% each effective 20110404. This increased
combined rating to 60% with bilateral factor 2.7.
ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating
the fairness of DES fitness determinations and rating decisions for disability at the time of
separation. The Board utilizes VA evidence proximal to separation in arriving at its
recommendations; and, DoDI 6040.44 defines a 12‐month interval for special consideration to
post‐separation evidence. Post‐separation evidence is probative only to the extent that it
reasonably reflects the disability and fitness implications at the time of separation.
Low Back Pain Condition. There were range of motion (ROM) evaluations in evidence, with
documentation of additional ratable criteria, which the Board weighed in arriving at its rating
recommendation; as summarized in the chart below.
2 PD1200693
Flexion (90⁰ Normal)
~15⁰ with pain
Thoracolumbar ROM
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
DD Form 2808
~5.5 Mos.
Pre‐Sep
10⁰
20° (17)
20° (22)
Equal to Left
Equal to Right
65°‐125°
Comment
Tenderness to
palpation (TTP)
T10‐S1; + SLR
right 75⁰/left 80⁰;
patellar reflexes
1/4 bilateral,
ankle 2/4
bilateral; muscle
strength 5/5
bilateral
§4.71a Rating
5292
5295
MEB ~5 Mos. Pre‐Sep
Not Measured
‐
Well healed surgical scar; significant paraspinal spasm
from mid thoracic levels to sacroiliac(SI) joints with
severe tenderness overlying bilateral SI joints; Faber
Test/Gaeslen’s Test + bilaterally for pain in SI joints;
motor 5/5 strength throughout; Light touch intact
throughout except for decreased light tough in C6
distribution bilaterally; reflexes 2/4/symmetric; toes
down going; coordination intact; normal rectal tone; no
increase in symptoms with axial compression; straight
leg raise(SLR) neg; seated SLR neg bilaterally; no
increased pain with distraction; no weakness or
overreaction to exam
VA C&P
~6 Mos.
Post‐Sep
40⁰ (42)
20⁰
15⁰
20⁰
Not Measured
95°‐155°
Gait‐normal;
upright posture;
no motor or
sensory loss in
legs, feet; dorsal
spine‐no
deformity,
tenderness
40%
40%
20%
20%
The CI’s low back injury is well documented in the service treatment record (STR) starting in
May 1995 through to May 2002. The CI had progressive worsening of the LBP and an MRI/CT
Scan demonstrated L5 bilateral spondylolysis. In February 2001 the CI underwent an L5‐S1
fusion. The MEB narrative summary (NARSUM) examination five months prior to separation
noted severe constant LBP exacerbated by all activities such as sitting, walking, prolonged
standing or any bending or stooping. The examiner further noted that the CI‘s functional status
was an inability to perform any military duties consistent with an infantry soldier. At the time
of this examination, the CI complained of mild leg tingling with prolonged standing or activity.
The MEB NARSUM exam findings are summarized in the chart above. The MEB examination
recorded on DD form 2808 was completed approximately two weeks prior to this NARSUM
examination and it included ROM measurements. The examination findings are noted in the
chart above. This exam documented bilateral positive straight leg raises but did not specify if
this meant back pain or radicular pain occurred. In addition, this examination makes no
comment on the presence of absence of lower extremity radicular symptoms. The NARSUM
exam documented bilateral negative straight leg raise testing. The NARSUM examiner
diagnosed “severe low back pain” and the severe qualifier was included on the MEB submission
to the PEB. While there are few outpatient treatment records from the twelve months prior to
separation, radiating leg pain and tingling is documented. None of these treatment records
include ROM information and earlier treatment records document findings ranging from full
ROM to ROM limitations similar to those recorded on the DD 2808. The CI was granted a P3L3
profile with limitations of no ruck marching, marching more than three miles, lifting more than
30 pounds, or perform sit‐ups and various other exercises and running and bicycling were
limited to his own pace and distance. He also was restricted from wearing a backpack or a
helmet as well as carrying and firing a weapon. The Commander’s Statement noted that the CI
was limited in his ability to run, do sit‐ups and road marches that had a limitation of three miles
with thirty pounds on his back. The Commander opined that the CI’s medical condition
prevented him from doing duties expected of any Soldier. The MMRB confirmed that the CI’s
profile limitations were so restrictive that he was not qualified for retraining and reclassifying
into any MOS. The VA Compensation & Pension (C&P) examination six months after separation
noted early morning and nightly back pain with occasional radiation down both legs and an
3 PD1200693
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of joint
space or some of the above with abnormal mobility on forced
motion...........................................................................
With muscle spasm on extreme forward bending, loss of lateral
spine motion, unilateral, in standing position...............
With characteristic pain on motion.......................................
With slight subjective symptoms only....................................
5292 Spine, limitation of motion of, lumbar:
Severe..............................................................................
Moderate.........................................................................
Slight.................................................................................
40%
20%
10%
0%
40%
20%
10%
inability to sit more than thirty to forty five minutes. The VA C&P exam findings are
summarized in the chart above.
The 2002 Veterans Administration Schedule for Rating Disabilities (VASRD) coding and rating
standards for the spine, were in effect at the time of separation and then changed to the
current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on
range of motion (ROM) impairment were subject to the rater’s opinion regarding degree of
severity, whereas the current standards specify rating thresholds in degrees of ROM
impairment. When older cases have goniometric measurements in evidence, the Board
reconciles (to the extent possible) its opinion regarding degree of severity for the older spine
codes and ratings with the objective thresholds specified in the current VASRD §4.71a general
rating formula for the spine. This promotes uniformity of its recommendations for different
cases from the same period and more conformity across dates of separation, without sacrificing
compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time
of separation. For the reader’s convenience, the 2002 rating codes under discussion in this case
are excerpted below.
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive
The Board directs attention to its rating recommendation based on the above evidence. The
PEB coded the LBP condition 5295 Lumbosacral strain (With muscle spasm on extreme forward
bending, loss of lateral spine motion, unilateral, in standing position) rated 20%. The VA coded
the back condition 5292 Spine, limitation of motion of, lumbar (Moderate) rated 20%. The
NARSUM exam showed significant paraspinal spasm from mid thoracic levels to sacroiliac (SI)
joints with severe tenderness overlying bilateral SI joints and an inability to bend or stoop. The
MEB examination documented significantly limited ROM of the thoracolumbar spine. These
examinations support a disability rating of 40% under either 5292 or 5295. While the CI does
not have a listing of the whole spine to opposite side, the criteria for a 40% are met based on
“some of the above with abnormal mobility on forced motion.” The CI has marked limitation of
forward bending in standing position, loss of lateral motion with osteoarthritis changes on x‐
ray, narrowing of the L5‐S1 joint space noted on x‐ray. Additionally, while a Goldthwaite test
was not specifically mentioned, the CI did have sacroiliac joint pain noted on examination. The
VA C&P exam noted more moderately limited ROM measurements consistent with the 20%
disability rating assigned by the VA. The VA examination made no comment about sacroiliac
joint pain but VA x‐rays documented osteoarthritic changes and joint space narrowing. There is
no evidence of embellishment on either examination. If today’s VASRD were utilized, these
same ratings would result from each examination. Both examinations appear to be equally
valid and both are equally detailed and approximately equidistant from the date of separation.
The Board placed a higher probative value on the service examinations as they occurred prior
4 PD1200693
to separation. It appears the CI’s condition improved over time. However, there is no
information in the record about the CI’s condition between the time of the MEB NARSUM and
the VA C&P examination. The MEB NARSUM, which shows a severe condition, is the latest data
available that is prior to separation. It is not possible to determine the precise moment in time
when the improvement rendered the CI’s condition moderate or whether this occurred prior to
separation and any attempt to do so would be mere speculation. With application of
reasonable doubt, the Board assumes the condition remained severe at the time of separation.
Although there does appear to be a lower extremity radiculopathy, there are no abnormal
neurologic findings and it does not appear to have caused any functional impairment at the
time of separation from service. The VA later added ratings for bilateral radiculopathy but this
was not effective until more than eight years after separation from service. After due
deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the
Board recommends a disability rating of 40% for the low back pain condition.
BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or
guidelines relied upon by the PEB will not be considered by the Board to the extent they were
inconsistent with the VASRD in effect at the time of the adjudication. The Board did not
surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD
were exercised. In the matter of the Low Back Pain condition, the Board by a vote of
2:1recommends a disability rating of 40%, coded 5295 IAW VASRD §4.71a. The single voter for
dissent who recommended adopting the VA rating at 20% submitted the addended minority
opinion. There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as
follows; and, that the discharge with severance pay be recharacterized to reflect permanent
disability retirement, effective as of the date of his prior medical separation:
UNFITTING CONDITION
VASRD CODE RATING
Low Back Pain
5295
COMBINED
40%
40%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120604, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
5 PD1200693
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXXXX) 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXX, AR20130000742 (PD201200693)
1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review
(DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.
Under the authority of Title 10, United States Code, section 1554a,
I reject the Board’s recommendation and accept the Board’s minority opinion as accurate that
the applicant’s final Physical Evaluation Board disability rating remains unchanged. There is
insufficient justification to support the Board’s recommendation in accordance with Army and
Department of Defense regulations.
2. This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision by
mail.
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl
XXXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
6 PD1200693
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