RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00941
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040804

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic subjective back pain” with a disability rating of 10%.   

CI CONTENTION:  “Because I had to end my military career for injuries I did not have when I came into the military.  I’m having problems with these injuries that’s only getting worse with time.  I really feel they don’t give anyone what they deserve from get hurt in the military.”  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 progression or complications of service-connected conditions after separation.  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 - 20040614	VARD - 20050224	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain	5299-5237	10%	Lumbar Spine L4-5 Bulging Disc	5243	10%	20041231	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Subjective Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in January 2001 after heavy lifting.  A magnetic resonance imaging (MRI) study in January 2004 showed minimal disc bulges at L4-5 and L5-S1 with no narrowing of the neural foramina.  Neurosurgery was consulted and did not recommend any surgical intervention.  At the 24 September 2003 Physical Therapy (PT) appointment, 10 months prior to separation, the CI reported low back pain with no radicular pain, aggravated by prolonged sitting, standing, walking, and with bending.  Physical examination showed a normal gait with back tenderness.  The examiner reported range of motion (ROM) was within normal limits except forward bending was reduced by 50% (45 degrees) with pain.  

During the 18 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported recurrent back pain with numbness and tingling down her legs.  The examiner reported a normal spine with full range of motion and normal strength.  The panel noted that the examiner requested a PT consult to document ROM measurements which are listed below in the NARSUM examination.  The 23 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of lower back pain that radiated down both legs and the CI denied any numbness or tingling in the legs.  Physical examination showed a normal gait.  ROM measurements showed a flexion of 50 degrees (normal 90) and a combined ROM of 160 degrees (normal 240) with pain on all movements.  There were no spasms reported and the examiner noted that an electromyography (EMG) study on 4 April 2004 was normal with no evidence of radiculopathy.  

At the 31 December 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported low back pain worsened with prolonged sitting, standing, holding, and with bending activities.  Physical examination showed normal strength and sensation in the lower extremities.  ROM measurements showed a flexion of 75 degrees (normal 90) and a combined ROM of 210 degrees (normal 240).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain), citing range of motion limited by pain.  The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing evidence for lumbar spine L4-5 bulging disc.  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) as reported on the MEB NARSUM examination and PT evaluation.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  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 subjective back pain condition, coded 5299-5237.  

BOARD FINDINGS:  In the matter of the chronic subjective back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5237 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 Subjective Back Pain	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160916, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170018467, 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