RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00658
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041031

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

CI CONTENTION:  The CI made no specific contention.  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 - 20040907	VARD - 20041122	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5242	10%	DDD of L4-S1…	5237	20%	20040930	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50% 	

ANALYSIS SUMMARY:  

Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was seen by neurosurgery in early 2004 for a 6-year history of progressive low back pain (LBP) which began without specific injury or trauma.  An MRI on 14 May 2004 showed degenerative disc disease (DDD) changes with a disc protrusion at L5/S1 and L4-5 with the latter compressing the left nerve root.  The MEB DD Forms 2808 and 2807 were dated 3 August 2004 and recorded longstanding LBP.  The back was tender, but the neurological examination was normal.  The CI was recorded to have a normal range of motion (ROM) of the joints.  The 20 August 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of progressive worsening of the LBP despite treatment.  The physical examination showed 55 degrees of flexion and a combined ROM of 180 degrees, after rounding.  There was tenderness to palpation.  The CI was able to walk on tip toes and heels and had a normal neurological examination.  In physical therapy on 23 August 2004, the ROM measurements showed flexion of 90 degrees (normal) and a combined ROM of 220 (normal is 240).  The ROM was stopped at the onset of pain.  

At the 30 September 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported chronic, sharp pain in his back extending down his left lower extremity to the foot.  He denied incontinence or the use of an assistive device.  Ambulation was noted to be independent.  Incapacitation was not recorded.  The physical examination showed a normal posture without spasm.  The ROM was incorrectly documented and therefore not probative for rating.  There was no limitation of motion due to pain.  Guarding was present, but spasm and atrophy were absent.  The neurological examination was intact without focal deficit.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing ROM limited by pain and tenderness.  The VA rated the back condition 20%, coded 5237 (lumbosacral strain), based on the C&P examination 1 month before separation.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) was supported by the NARSUM measurements, but not by the physical therapy ROM examination 3 days later.  The VA measurements were determined to have been incorrectly recorded and were not used for the rating recommendation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.7 (higher of two evaluations), the panel recommends a disability rating of 20% for the back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  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	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Records

AR20170016861, 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