RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX	CASE: PD-2016-00883
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  2004-12-14

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Track Vehicle Repairer, medically separated for “chronic low back pain” with a disability rating of 0%.

CI CONTENTION:  Used evidence supports a higher rating.  The VA rating less than 12 months supports a higher rating.  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 - 20041028	VARD - 20050110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5099-5021	0%	DDD, Thoracolumbar Spine	5242	10%	20041118	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Low Back.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in 2001 with no specific injury or trauma identified.  Radiographic studies in March (X-Rays, CT scan) and April 2004 (MRI study) showed degenerative changes (bulging discs) in the lower spine (at the L4-L5, L5-S1 intervertebral disc levels), with impingement of the L5 nerve root.  At the 11 May 2004 neurosurgery evaluation, 8 months prior to separation, the CI reported pain that radiated down to the left foot; with numbness, tingling, and extremity weakness noted during activities.  Physical examination revealed a normal gait and neurologic examination with no evidence of nerve root irritation.  Range of motion (ROM) was recorded as flexion to 70 degrees (normal 90) and combined ROM at 220 degrees (normal 240); painful motion was not addressed.  The 13 September 2004 MEB NARSUM examination, 3 months prior to separation, noted pain with inability to lift or carry over 50 pounds, work with tools, walk more than 1 mile, and run.  Physical examination showed a normal gait with no evidence of tenderness or abnormal curvature.  Neurologic testing showing nerve root impingement was negative.  At a 27 September 2004 MEB physical therapy examination, repetitive ROM was flexion to 85 degrees and combined ROM was 225 degrees; painful motion was not addressed.

During the 18 November 2004 VA Compensation and Pension (C&P) evaluation, 1 month prior to separation, the CI reported constant pain that radiated down the legs, which limited running and lifting.  He denied incapacitation or lost work time due to the condition, and was able to perform all activities of daily living.  Physical examination showed normal gait and posture.  Spinal muscle spasm and tenderness were present.  Neurological testing showed no evidence of nerve root impingement.  ROM was flexion to 90 degrees and combined ROM was 230 degrees with painful motion.

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, analogously coded 5099-5021 (myositis).  The VA rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 1 month before separation, citing limitation of combined ROM.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) reported by the MEB physical therapy and C&P examinations.  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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back pain, coded 5242.

BOARD FINDINGS:  In the matter of the chronic low back pain, the panel unanimously recommends a disability rating of 10%, coded 5242 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	5242	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170622 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170017223, 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