RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01023
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040607

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

CI CONTENTION:  “I’ve had 3 back surgeries.  I am unable to do a lot of what employers ask and also no one wants to hire disable veterans especially those of us that has had back surgeries.”  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 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 - 20040225	VARD - 20040722	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain 	5243	10%	L5-S1 Herniated Nucleus Pulposus	5243	20%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Low 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 June 1998 after landing on his back during a parachute jump.  Magnetic resonance imaging (MRI) studies in June 2002 showed a moderate sized left paracentral disc protrusion causing compression of the exiting nerve root at L5-S1.  Surgery was not indicated.  

At the time of the Orthopedic Clinic appointment on 3 December 2003, 7 months prior to separation, the CI reported low back pain with occasional shooting pain down to the knee and no loss of feeling, paralysis, or weakness in his legs.  On examination there was no muscle spasm or tenderness to palpation over the paraspinous muscles or interspinous ligaments.  Thoracolumbar range of motion (ROM) measurements recorded active flexion to 45 degrees (normal 90) and combined ROM of 135 degrees (normal 240).  

The 9 January 2004 MEB NARSUM examination, 6 months prior to separation, showed tenderness to palpation of the paraspinous muscles with mild spasm present.  The examiner was silent regarding gait and spinal contour.  ROM measurements taken with an inclometer recorded flexion of 35 degrees (normal 90) and combined ROM of 150 degrees (normal 240) with painful motion.  There was no VA Compensation & Pension examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing combined thoracolumbar range of motion of 150 degrees.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), citing MEB evidence of forward flexion of the thoracolumbar spine that is limited to 35 degrees and MRI revealing a moderate sized left paracentral disc protrusion causing compression of the exiting nerve root at L5-S1.  

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 NARSUM and the 3 December 2003 orthopedic clinic examinations.  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 20% for the chronic low back pain condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back pain 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 	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160920, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Rating Decision 

AR20170018574, 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