RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-03896
BRANCH OF SERVICE:  Army                                                            SEPARATION DATE:  20040610

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5, Military Police, medically separated by the Informal Physical Evaluation Board (IPEB) for “low back pain” with a disability rating of 10%.

CI’s CONTENTION:  The CI requests all conditions be considered.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

SERVICE PEB – Dated 20040419	VARD – 20070207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5237	10%	Lumbar Degenerative Disc Disease (DDD)	5242	20%	20060928	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8 	
COMBINED RATING:  10%	COMBINED RATINGOF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Low Back Pain (LBP.  This CI had a long history of LBP, dating back to 1996.  In June 2003 while deployed overseas, he developed LBP and was medically evacuated from theater.  Magnetic resonance imaging showed mild DDD centered at L5-S1.  He was treated with medications, physical therapy (PT), epidural steroids, and other non-operative measures.  In spite of all treatment efforts, he continued to have problems with LBP, and an MEB was initiated.  The MEB narrative summary was dated 26 March 2004.  At the MEB exam, the CI reported that he was unable to run, walk fast, walk far, bend forward, or stand for prolonged periods without getting pain in the lower back.  Physical examination of the lower back revealed positive tenderness, and limited range-of-motion (ROM).  On 2 April 2004, thoracolumbar ROM was measured by PT.  Those measurements are summarized in the chart below.  The CI was separated from service on 10 June 2004.  Twenty-seven months later, in September 2006, he had a VA Compensation and Pension (C&P) exam.  As noted above, the Board does give consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  The Board determined that 27 months was too long past separation, and therefore, the data from that C&P exam had very low probative value.

The Board directed attention to its rating recommendation based on the evidence.  The Board determined that the best source of information upon which to base its rating recommendation was the April 2004 ROM evaluation by PT, which was just 2 months before the date of separation (DOS).  At that visit, thoracolumbar forward flexion was 55 degrees.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees.

Therefore, the Board determined that a 20% rating was appropriate in this case.  The Board tried to find a path to a higher rating.  There was no path to a higher rating, because the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.

The Board also considered the matter of radiculopathy.  The CI did have neurological symptoms.  However, after review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the DOS.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a 20% disability rating for the LBP condition.

BOARD FINDINGS:  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
LBP, with minimal DDD at L5-S1 	5242	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140902, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Dear 

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 Iaccept 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 

Sincerely,

Enclosure