RECORD OF PROCeediNGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01529
BRANCH OF SERVICE:  army	SEPARATION DATE:  20041028

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

CI CONTENTION:  Review requested of back, neck and headache conditions, as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:

SERVICE PEB - 20040913	VARD - 20050329	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5239	10%	L5-S1 Spondylolysis with Spondylolisthesis	5299-5237	10%	20050118	
Degenerative Changes of the Cervical Spine	Not Unfitting	C3-4-5-6 Cervical Spine Traumatic Degenerative Changes	5242-5243	10%		
Cervicogenic Headaches		Tension Headaches	8199-8100	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in 1993 with no specific injury, and was exacerbated in 1994 after pushing a vehicle into a service bay.  A lumbosacral MRI affirmed spondylolisthesis and gross L5-S1 disc degeneration.  
At the 28 July 2004 MEB consultation, 3 months prior to separation, the CI reported low back pain that radiated to the thigh.  Physical examination revealed a normal heel and toe gait, and “reverse of normal lumbar lordosis.”  Back range of motion (ROM) was flexion with fingertips down to the mid-third of the tibia (approximately 70 to 80 degrees) and combined ROM was incomplete; painful motion was not addressed.  During the 2 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808) lumbar spine flexion was 60 degrees (normal 90) and combined ROM was 175 degrees (normal 240), with painful motion.  At the 11 August 2004 MEB ROM evaluation, flexion was to 45 degrees with a combined ROM of 160 degrees and painful motion present.  During the 12 August 2004 MEB NARSUM examination, the CI reported low back pain.  Physical examination revealed spinal tenderness, but gait, spinal contour and muscle spasm were not addressed.  The examiner referenced the MEB DD Form 2808 ROM examination.  

The 18 January 2005 VA Compensation and Pension (C&P) examination, 3 months after separation, showed a normal gait, mild scoliosis and no spinal tenderness or spasm.  Thoracolumbar flexion was 80 degrees with pain (combined ROM measurement incomplete).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5239 (spondylolisthesis or segmental instability), citing flexion to 60 degrees limited by pain alone, and no muscle spasm or tenderness.  The VA also rated the low back condition 10%, analogously coded 5237 (lumbosacral strain), based on the C&P examination, citing limitation of flexion.  Members 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 recorded on the MEB DD Form 2808 and MEB ROM examinations.  Although the MEB NARSUM examination documented the CI was placed on quarters due to the back condition, there was no STR evidence to quantify incapacitations in order to support a higher rating under code 5243 (intervertebral disc syndrome).  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the low back condition, coded 5239.  

Contended PEB Conditions:  Degenerative Changes of the Cervical Spine and Cervicogenic Headaches.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain, the panel recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  In the matter of the contended degenerative changes of the cervical spine and cervicogenic headaches conditions, the panel recommends no change from the PEB determinations as not unfitting.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5239	20%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20161014, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20180014195, 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