RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01413
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E6, Light Wheeled Vehicle Mechanic, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”   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 (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 - 20040525	VARD - 20050921	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	Lumbar Myositis with Herniated Nucleus Pulposus of L5-S1	5243	20%	20040927	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially hurt his back after a motor vehicle crash in 1991 or 1992 and then exacerbated it in October 2003 following heavy lifting that caused severe pain to the middle lower back.  Within two days of the injury, the pain radiated down the right leg extending to the foot.  Conservative treatment followed.  An MRI in December 2003 showed L5-S1 right lateral disc herniation moderately compressing the thecal sac and deviating posteriorly to the right S1 nerve root.  

The 21 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain with decreased sensation, intermittent numbness, and occasional shooting pain to the right leg.  Physical examination showed tenderness to the lumbar muscles.  Some muscles spasms were present in the lumber area with the right being a little worse than the left.  Range of motion (ROM) measured with a goniometer showed flexion of 35 degrees (normal 90) and combined ROM of 130 degrees (normal 240) with pain at the end of each movement.  On 1 May 2004 the electroneuromyography examination (nerve conduction test) showed a normal study without evidence of radiculopathy.  

At the 27 September 2004 VA Compensation and Pension evaluation, 2 months after separation, the CI complained of intermittent low back pain that occasionally radiated up to the mid back.  Precipitating factors were movements and activities.  Alleviating factors included rest, non-steroidal anti-inflammatory drugs, and a narcotic-like pain medication.  The CI was able to walk for 15 to 20 minutes with a slow pace.  One-point cane was used as needed.  Physical examination showed ROM measured with a goniometer forward flexion of 45 degrees (normal 90) and combined ROM of 195 degrees (normal 240) that was not limited by pain.  

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 thoracolumbar range of motion limited by pain, with localized tenderness.  The VA rated the back condition 20%, coded 5243, citing forward flexion of thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

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 VA examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes with physician-prescribed bedrest which would provide for a higher rating under that formula.  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 back pain condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic 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 Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161017, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180001583, 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.

Sincerely,					      
						      					
Enclosure