RECORD OF PROCEEDINGS
PHYSICAL DISABILITY PANEL OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00207
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Senior Chaplain Assistant, medically separated for “low back pain, with degenerative disc disease L5-S1,” with a disability rating of 10%.

CI CONTENTION:  The CI contends her back continues to worsen.  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 - 20030804	VARD - 20040927	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBB, with DDD L5-S1	5299-5295	10%	DDD Lumbar Spine.	5299-5243	10%	20040304	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel noted that the 2003 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The panel must correlate the above clinical data with the 2003 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome; based on incapacitating episodes); and 5295 (Lumbosacral strain).  

Low Back Pain, with Degenerative Disc Disease L5-S1.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was first evaluated for a 1-2 year history of low back pain (LBP) in 2001.  A bulging disc was seen on MRI and the CI was treated with medication, an injection, and physical therapy.  On 22 February 2002, a bone scan was normal, but a MRI showed a persistent disc bulge at L4-5.  A discogram on 25 February 2002 showed pain concordant with her symptoms at the L5-S1 level.  She also underwent heat treatment in February and April 2003 to reduce the size of the disc at L5-S1.  Despite treatment, she was unable to return to full duty and referred for an MEB.  The MEB NARSUM examination was dated 17 April 2003, 5 months prior to separation.  She reported ongoing LBP and bilateral lower extremity paresthesias (abnormal sensation).  The neurological examination and gait were normal.  Provocative testing for nerve root irritation was negative.  During the MEB examination (recorded on DD Forms 2807 and 2808) one month later, the CI reported constant back pain and that she had been issued 2 back braces.  On physical examination, there was a minor decrease in the range of motion (ROM) and her movements were slowed.  The neurological examination was normal.  At the VA Compensation and Pension (C&P) evaluation performed on 4 March 2004, 5 months after separation, the CI reported that she had been in a car accident in October 2003, one month after separation.  She underwent rehabilitation from November 2003 to January 2004.  On physical examination, the gait was abnormal due to pain, but the CI was able to complete heel to toe raises and tandem walking.  The motor function and deep tendon reflexes were normal.  The ROM measurements recorded 80 degrees forward flexion (90 normal).  No other thoraco-lumbar measurements were recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 10%, using a now superseded 5295 spine code (lumbosacral strain, currently coded 5237) citing painful motion.  The VA also rated the low back pain 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 5 months after separation, citing “limitation of forward flexion to 70 degrees with pain at end of motion.”  The panel agreed that a 10% rating was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) reported on the VA examination.  There was no documented muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour to support a higher 20% rating.  The use of the older code by the PEB did not result in a rating disadvantage for the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back pain.  

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160408, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014104, XXXXXXXXXXXXXXXXXXX

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