RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01569
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041119

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

CI CONTENTION:  His condition has impacted his ability to find employment.  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 Medical Evaluation Board (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 - 20040715	VARD - 20041216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5239	10%	Lumbar Spondylolysis	5299-5239	20%	20041014	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Low Back Pain.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s low back condition began in January 2004 while moving military furniture and equipment.  A CT scan demonstrated lower lumbar arthritic changes as well as mild lumbosacral slippage (anterolisthesis: upper vertebral body slips forward onto the vertebra below) at L5 on S1.  The 17 June 2004 MEB consultation, 5 months prior to separation, noted complaints of low back pain.  The physical examination (PE) revealed a normal gait.  Spinal range of motion (ROM) documented normal lateral flexion and forward flexion to “6 inches from the floor”.  Clinical tests for radiculopathy were negative.  Painful motion was not addressed.  The 22 June 2004 MEB NARSUM noted complaints of low back pain.  His PE revealed spinal tenderness without muscle spasms.  Radiculopathy tests were negative.  Lower extremity sensation and motor strength were normal.  Spinal ROM was performed by MEB physical therapy (PT) on the same date.  Repetitive forward flexion was 45 degrees and combined ROM totaled 150 degrees with painful motion.

At the 14 October 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported low back pain.  His PE revealed a normal gait and posture.  There was no radiating pain to the lower extremities and sensation was intact.  Radiculopathy tests were negative.  Spinal ROM measured flexion to 70 degrees and combined ROM of 205 degrees with painful motion.  Repetitive ROM reduced flexion to 60 degrees for a positive DeLuca requirement. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 10%, coded 5239 (spondylolisthesis).  The VA rated the low back condition at 20%, analogously coded 5299-5239, based on the C&P examination 1 month before separation, citing limitation of motion.  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 and VA examinations proximate to separation.  There was no documentation of intervertebral disc syndrome 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 low back condition, coded 5239.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5239 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	5239	20%	

The following documentary evidence was considered:

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

AR20180004655, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,	
Enclosure