RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200612 SEPARATION DATE: 20030819
BOARD DATE: 20130115
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty, SPC/E‐4, (92R/Parachute Rigger), medically
separated for chronic low back pain (LBP). The CI injured his back during a nighttime airborne
operation in June 2002. The CI had no improvement with rest, multiple medications, physical
therapy, or chiropractic therapy and was unable to meet the physical requirements of his
Military Occupational Specialty or satisfy physical fitness standards. He was issued a
permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded
no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the
low back condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for
Rating Disabilities (VASRD). The CI made no appeals and was medically separated with a 10%
disability rating.
CI CONTENTION: “My condition has considerably worsened. Also the medical condition has
branched off into other medical problems.”
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 ratings
for unfitting conditions will be reviewed in all cases. The lumbar condition requested for
consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and is
accordingly addressed below. No other conditions are 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
Correction of Military Records.
RATING COMPARISON:
Service IPEB – Dated 20030428
Condition
Chronic Low Back Pain with
Herniated Disc L5‐S1
Code
5293‐5299‐
5295
Rating
10%
VA (3 Months Pre‐Separation) – All Effective Date 20030820
Condition
Herniated Disc L5‐S1, Residuals
of
Injury also claimed as
Numbness in Both Legs
Bilateral Recurrent Tinnitus
0% X 2 / Not Service‐Connected x 2
Combined: 30%
Rating
20%*
10%
Code
5292
6260
Exam
20030521
20030521
20030521
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
*Increased to 30% and combined rating increased to 40% effective 20090608
ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating
the fairness of Disability Evaluation System 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.
Chronic Low Back Pain. There were four 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.
Thoracolumbar
ROM
Physical
Medicine
~10 Months
Pre‐Separation
Flexion (90⁰ Normal) 60⁰
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex (0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
Comment
§4.71a Rating
5292
5293
5295
with
Ortho
~ 7 Months
Pre‐Separation
70°
symptoms
20°
asymptomatic
at
2+
Tender to light
touch
L4
level; negative
axial
load
symptoms;
reflexes
throughout
bilateral
extremities;
5/5
motor
bilateral;
heel
and toe walk led
to back pain
lower
10%
10%
30⁰
30⁰ (45)
30⁰ (45)
Tenderness at
L5‐S1; straight
leg raise and
Faber’s
negative;
motor
5/5
bilateral lower
extremities;
sensation
intact to light
touch,
pinprick, and
proprioception
bilateral lower
extremities
20%
10%
MEB with PT ROM
~4.5 Months
Pre‐Separation
VA C&P ~3 Months
Pre‐Separation
90⁰ (100)
60⁰ (Pain)
20⁰
30⁰ (30)
30⁰ (40)
30⁰ (45)
30⁰ (45)
230°
PT: active ROM was
same as passive ROM
MEB: tenderness to
palpation L4 to S1; no
paralumbar tenderness
or spasms; negative
raise;
straight
negative
Waddell’s
2+
signs;
throughout;
strength
throughout;
5/5
to
sensation
intact
touch
light
with
hypersensitivity
to
palpation in both feet,
greater on the left.
reflexes
leg
20⁰ (Pain)
30⁰ (40)
30⁰ (40)
30⁰
30⁰
200⁰
Normal gait, able to walk on heels
and toes without difficulty; normal
curvature and no spasm; tenderness
to palpation of paraspinal muscles,
lumbar
and
coccyx; painful motion; radiation
pain
leg raise
positive bilaterally at 20 degrees;
reflexes
equal—3/3
bilaterally; sensation to light touch is
decreased at the anterior, lateral,
and posterior aspects of the right
upper leg and at the posterior aspect
of the right lower leg; sensation to
light touch is normal in the left leg;
motor is 5/5 in all muscles;
leg; straight
vertebra,
sacrum,
in R
brisk
and
10%
20%
10%
10%
The MEB narrative summary (NARSUM) examination was completed approximately 4 months
prior to separation. The CI had a history of several minor back injuries that had all resolved
with conservative treatment. However, in June 2002 he suffered a significant back injury during
nighttime airborne operations that did not resolve with conservative therapy including, rest,
medication, physical therapy, and chiropractic care. Surgery was not indicated. The CI reported
constant LBP rated at 4/10 that increased to 10/10 with any physical activity or standing or
sitting for any length of time. He also reported tingling, coldness, and numbness in both legs.
Magnetic resonance imaging performed in November 2002 noted a moderate L5‐S1 left
paracentral, wide‐based disc protrusion with effect on the thecal sac and bilateral S1 nerve
roots. An electromyogram of right lower extremity was normal in January 2003. The NARSUM
reports the findings of three other examinations, one from physical medicine completed in
October 2002, one from April 2003 recorded on a DD Form 2808, and ROM testing by physical
therapy obtained in April 2003. The source documents are present in the record and the
physical findings are recorded in the chart above.
2 PD1200612
The VA Compensation and Pension (C&P) exam completed 3 months prior to separation,
reported a similar clinical history; functional impairments and the physical examination findings
are located in the chart above. A second C&P examination in July 2005 noted similar findings
with thoracolumbar flexion limited to 55 degrees with an additional loss of 10 degrees with
repetition. A subsequent C&P examination completed in July 2009 noted a significantly more
limited thoracolumbar flexion of 15 degrees. The disability rating was increased to 30% after
this examination.
The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of
separation, had been modified on 23 September 2002 to add incapacitating episodes (5293
Intervertebral disc syndrome), and were later changed to the current §4.71a rating standards
on 26 September 2003. The 2003 standards for rating based on 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.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB used an analogous code that included both 5293 and 5295; but it is not clear if the 5293
code used is based on the previous criteria, or the new criteria based on incapacitating
episodes. A 10% disability rating was assigned based on painful motion. The VA used VASRD
code 5292 and assigned a 20% disability rating based on moderate limitation of motion. No
evidence of incapacitating episodes as defined in the VASRD was present in the record and a
rating using code 5293 based on the frequency of incapacitating episodes cannot be
determined. Both the NARSUM examination with ROM measured by physical therapy and the
initial VA C&P examination appear to be valid and complete and both were completed prior to
separation. The VA C&P examination is closer to the time of separation, but still prior to
separation and therefore greater probative value is given to this examination. This examination
supports a 20% rating using 5292. While the NARSUM examination does not support a 20%
rating, previous examinations support the 20% rating. After due deliberation, considering all of
the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board
recommends a disability rating of 20% for the chronic 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 chronic low back pain with herniated disc condition, the
Board unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.
There were no other conditions within the Board’s scope of review for consideration.
3 PD1200612
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as
follows, effective as of the date of his prior medical separation:
VASRD CODE RATING
5292
RATING
20%
20%
UNFITTING CONDITION
Low Back Pain with Herniated Disc at L5‐S1
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120606, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXX, AR20130001357 (PD201200612)
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 accept the Board’s
recommendation to modify the individual’s disability rating to 20% without recharacterization
of the individual’s separation. This decision is final.
2. I direct that all the Department of the Army records of the individual concerned be corrected
accordingly no later than 120 days from the date of this memorandum.
3. I request that a copy of the corrections and any related correspondence be provided to the
individual concerned, counsel (if any), any Members of Congress who have shown interest, and
to the Army Review Boards Agency with a copy of this memorandum without enclosures.
BY ORDER OF THE SECRETARY OF THE ARMY:
4 PD1200612
Encl
XXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200612
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