RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00212
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Food Service Specialist, medically separated for “chronic low back pain” with a disability rating of 0%.

CI CONTENTION:  The VA rating less than 12 months supports a higher rating.  Additional unfitting conditions were not considered.  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 - 20070607	VARD - 20080519	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Lumbar Spine Strain with Spondylosis and Facet Disease	5239-5237	10%	20071016	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in October 2005 after stepping in a hole and falling on his tailbone.  Radiographic imaging (X-ray and MRI) showed a normal lumbar spine.

At the 21 February 2007 primary care clinic, 7 months before separation, the CI complained of ongoing back pain.  Physical examination revealed no spinal tenderness and a normal posture.  Range of motion (ROM) was “full” without painful motion.  During the 26 February 2007 follow-on primary care clinic evaluation, physical examination revealed a normal gait and spinal tenderness without muscle spasms.  ROM was flexion limited to “fingers to knees” which approximates to 65-80 degrees (normal 90) without painful motion.

During the 28 March 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported constant low back pain and bilateral lower extremity numbness.  Physical examination showed ROM of flexion to 60 degrees and combined ROM was 185 degrees (normal 240) with painful motion.  The 18 May 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of daily back pain which increased with exertion.  Physical examination revealed no spinal tenderness, muscle spasm, guarding, abnormal gait or abnormal spinal contour.  ROM was flexion to 60 degrees and combined ROM was 160 degrees with painful motion.

At the 16 October 2007 VA Compensation and Pension (C&P) evaluation, performed 1 month after separation, the CI reported constant pain with flare-ups.  Physical examination showed a normal gait and spinal contour, and no spinal tenderness or muscle spasms.  ROM was flexion to 80 degrees and combined ROM was 215 degrees with painful motion.

At an orthopedic clinic appointment on 6 March 2008, 6 months post separation, the CI reported 5/10 back pain with occasional numbness and weakness in bilateral legs and buttocks.  He did not experience bladder or bowel problems.  Physical examination showed a normal gait, and spinal tenderness, and diminished left lower extremity sensation.  Motor strength was normal and no radiculopathy signs were present.  ROM was flexion to the “mid-tibia” which approximates to 45 to 60 degrees.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 0%, coded 5237 (lumbosacral strain), citing no mechanical loss of motion.  The VA rated the lumbar spine strain condition 10% analogously coded 5239-5237 (spondylolisthesis-lumbosacral strain), based on the C&P examination 1 month after separation, citing limitation of flexion.

The panel majority 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) reported on the VA and orthopedic examinations that were most 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.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the low back pain condition, coded 5237.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel majority recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommended a 20% modification and did not elect to submit a minority opinion.  There are 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	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160406, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014106, 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