[AR Number], XXXXXXXXXXXXX. 

XXXXXXXXXXXX.
XXXXXXXXXX
XXXXXXXXXXXXXX

Dear  XXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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 been provided to the counsel you listed on your application;
Sincerely,					      
						      					
Enclosure

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX. 	CASE:  PD-2017-00159
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040521

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

CI CONTENTION:  The current severity of his condition merits a higher rating.  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 - 20040128	VARD - 20040728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain	5239	10%	DDD, Spondylolisthesis	5003-5239	10%	20040409	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Subjective Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began as early as January 2003 with no precipitating injury or trauma identified.  Radiologic studies performed in September 2003 showed a pars defect with Grade I spondylolisthesis.  The 24 September 2003 MEB NARSUM examination, 8 months prior to separation, noted complaints of low back pain that prevented wearing of required military equipment.  Physical examination recorded “lumbar” range of motion (ROM) with flexion to 20 degrees, extension to 10 degrees, and bilateral bending to 10 degrees.  
During the 15 January 2004 physical therapy examination, 4 months before separation, the CI reported back pain rated at 2/10 in severity.  Physical examination (using a goniometer) revealed forward flexion to 90 degrees (normal) and extension to 25 degrees (normal 30), with painful motion noted.

At the 9 April 2004 VA Compensation and Pension (C&P) examination, 1 month prior to separation, the CI complained of low back pain, rated at 4/10 in severity, along with stiffness and weakness.  Physical examination showed normal posture and gait and lower back tenderness. Back ROM was recorded as normal but with painful motion, and fatigability and pain with repetition.  Neurologic examination was normal.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5239 (spondylolisthesis or segmental instability). The VA also rated the back condition 10%, but coded 5003-5239 (degenerative arthritis– spondylolisthesis or segmental instability).  Members noted that the NARSUM examiner specified lumbar ROM rather than the VASRD-required thoracolumbar ROM, and therefore placed limited probative value on this examination.  The panel agreed although there was insufficient limitation of motion to support a 10% rating, a 10% rating was justified for the presence of painful motion and tenderness.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the chronic subjective back pain condition and IAW VASRD §4.71a the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170123, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record