RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02156
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Military Police, medically separated for “chronic low back pain secondary to scoliosis” with a disability rating of 10%.

CI CONTENTION:  Consider all conditions.  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 - 20041110	VARD - 20050105	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Thoracolumbar Levoscoliosis	5237	20%	20041201	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI received a waiver for asymptomatic scoliosis in 1994.  The condition continued to be monitored for progression and was asymptomatic until 2000 when the CI reported lower back pain with rucking, road marching and running hills.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The 23 August 2004 MEB examination (recorded on DD Forms 2807-1  and 2808), 3 months prior to separation, simply documented spinal range of motion (ROM) of forward flexion to 40 degrees (normal 90).  The 7 October 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of scoliosis and back pain with activity.  Physical examination revealed spinal tenderness and pain with full extension, forward bending and twisting (rotation). The CI was able to perform toe touches.
At the 1 December 2004 VA Compensation and Pension (C&P) evaluation, 2 days before separation, the CI reported daily right buttocks pain which increased during exercise.  Physical examination showed an antalgic gait due to back pain, lumbar tenderness, muscle spasms, and left thoracolumbar spine scoliosis.  ROM was flexion to 75 degrees (normal 90) and combined ROM was 160 degrees (normal 240); painful motion was not addressed.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing flexion limited to 40 degrees by pain.  The VA rated the back condition 20%, also coded 5237, based on the C&P examination 2 days before separation, citing the presence of muscle spasms with an abnormal gait and abnormal spinal contour.  The panel agreed that a 20% rating, but no higher, was justified based upon limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the MEB examination, and muscle spasm causing an abnormal gait and spinal contour reported on the C&P examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under the IVDS formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the chronic low back pain condition, coded 5237.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain secondary to Scoliosis	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150804, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010054, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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,	
Enclosure