RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00684
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20041124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Military Policeman, medically separated for “chronic back pain, without neurologic or electrodiagnostic abnormality” with a disability rating of 10%.  

CI CONTENTION:  He had issues with his elbows, feet, and hearing that were not addressed and requested that all conditions be reviewed.  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 PEB, but determined 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.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20040802	VARD - 20060414	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Neurologic or Electrodiagnostic Abnormality	5299-5237	10%	Low Back Strain Claimed as Low Back Condition	5237	10%	20050516	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY

Chronic Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1994 after he slipped in the shower.  An MRI in October 2002 showed an L4-5 disk herniation.  Conservative treatment, including physical therapy, oral medications, epidural steroid injections, and facet blocks did not result in improvement to permit return to full duty, and surgery was not indicated.  The CI was recommended for a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) in February 2004, which determined he was not capable of performing his duties in a worldwide field environment and directed referral to an MEB.  

The 17 May 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of constant, dull, aching low back pain with intermittent sharp pain radiating down both legs, left worse than right.  The pain was aggravated by prolonged sitting, standing, walking, running, jumping, bending over, and by lifting greater than 25 pounds.  His physical examination (PE) revealed tenderness of the right lumbar paraspinal muscles as well as the right sacroiliac joint.  There was no comment with regards to the presence of spasms or abnormal spinal contour, and the gait was noted as “stiff.”  Thoracolumbar range of motion (ROM) revealed flexion to 70 degrees (normal 90) and combined ROM of 190 degrees (normal 240) with painful motion.  Electro-diagnostic studies performed on 14 June 2004 were negative for lower extremity radiculopathy.

At the 16 May 2005 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported almost daily back pain averaging 5-6/10.  He had not taken any medication since his discharge and stated his back did not interfere with his occupation or activities of daily living but did prevent him from running or walking more than 2 miles.  His PE revealed a normal gait and posture.  Tenderness was present about the lumbar spine.  His thoracolumbar ROM was normal, but painful.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5299-5237 (analogous to lumbosacral strain), citing ROM limitation by pain and localized tenderness.  Under the same primary code, the VA also rated the back condition at 10% based upon the C&P examination 6 months after separation.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB NARSUM examination proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

The CI had a herniated disc, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength and reflexes and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact MOS activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160916, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170016358, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure