RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01240
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040917

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

CI CONTENTION: “I feel and believe 30% disability is an extremely low percentage for such a condition.”  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 (VA), 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 - 20040721	VARD - 20041108	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain without Neurologic Abnormality Status Post L5-S1 Fusion	5241	10%	Degenerative Disc Disease and Degenerative Joint Disease, Status Post Laminectomy with Fusion, L5-S 1	5243	20%	20040916	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L5-S1 fusion in February 2004 for degenerative disc disease.  The 16 March 2004 physical therapy (PT) visit, 6 months prior to separation, noted the evaluation was specifically for the MEB.  The CI reported pain as 4/10.  Physical examination showed range of motion (ROM) measurements as flexion of 60, 45 and 50 degrees (normal 90) and extension of 25, 25 and 25 degrees (normal 30) after repetition.  The measurements were with a bubble goniometer and were described as ‘standing’ ROM.  The examiner noted ROM was limited by pain and represented patient's willingness to move through pain, but also noted the “patient puts forth good effort.”  

During the 30 March 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, physical examination showed ROM measurements as approximately 70 degrees of flexion.  There was tenderness with no swelling.  

The 5 May 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of low back pain.  The examiner noted the CI had been doing well in his postoperative course, but did not want to put his back through the rigors of being in the service any more.  There were no physical examination comments or notes other than the examiner stating “[ROM] will be done by physical therapy.”  There were no further service ROM measurements in the record for the panel to consider.  

The 8 July 2004 MEB Addendum, 2 months prior to separation, noted the CI had diffuse tenderness around his area of surgery in the lumbar spine.  He had no erythema or evidence of wound infection and no neurologic deficit to motor, sensory or reflex testing in his lower extremities.  A bilateral straight leg raise test (for radiating symptoms) was negative.  

At the 16 September 2004 VA Compensation and Pension (C&P) evaluation, 1 day before separation, the CI reported daily pain, particularly with prolonged positioning and with repetitive bending and lifting.  Physical examination showed a normal gait.  There was no spasm, weakness, or tenderness.  ROM measurements recorded active flexion to 45 degrees and combined ROM of 195 degrees (normal 240).  There was no additional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive movement.  Neurological examination was normal with no evidence of sensory or motor impairment.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain, with localized tenderness (likely application of AR 635-40, B-29).  The VA rated the back pain condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 day before separation, citing limitation of flexion to 45 degrees with discomfort.  

The panel agreed 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 PT and VA examinations.  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 back pain condition, coded 5241.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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 Back Pain	5241	20%	

The following documentary evidence was considered:

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

AR20180000478, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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