RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00507
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20061208

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

CI CONTENTION:  “There is a regulation that states a service member can claim a disability within a year of his discharge date.  I was diagnosed with sleep apnea within that time.  The sleep study was used in their [VA] decision.  A copy of the sleep study that was done at the VA facility is attached and that should be a 50% that should put me at a combined rating of 100%.”  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 - 20061114	VARD - 20070702	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease, Lumbar Spine	5010-5242	20%	20070320	
COMBINED RATING:  10%  	COMBINED RATING OF ALL VA CONDITIONS:  20%  	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in March 2003 after a hard parachute landing fall.  Due to persistent LBP despite conservative treatment, the CI was given a P3 profile and referred to the MOS Medical Review Board (MMRB).  The MMRB reclassified the CI and his symptoms remained stable until he was involved in a motor vehicle accident in March 2006.  The CI reported LBP with intermittent right lower extremity radicular symptoms.  A lumbar spine MRI on 13 June 2006 showed degenerative disc disease at L4-S1 with possible nerve impingement.  He was offered a neurosurgical consultation, but declined consideration of any surgery.  

During the 15 August 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI complained of chronic back pain.  Physical examination showed a normal gait.  There was mild tenderness of the lumbar muscles.  Back range of motion (ROM) was flexion of 45 degrees (normal 90) and extension of 5 degrees (normal 30) with pain at end ROM.  Strength was normal.  

The 13 September 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of LBP with pain severity of 8/10.  The pain was aggravated by lifting and excessive physical activity.  Physical examination showed the CI to have a normal gait.  There were no deformities of the spine noted.  There was mild tenderness present without muscle spasm.  Low back ROM was flexion to 93 degrees , extension 33 degrees, left lateral flexion 22 degrees (normal 30), and right rotation 16 degrees (normal 30), with painful motion noted.  No other ROM measurements were provided.  Strength was 5/5 throughout and straight leg raise testing was negative for radicular symptoms.  Reflexes were 2+ and symmetrical.  Neurological examination was normal.  

During the 16 March 2007 VA emergency room visit, 3 months after separation, the CI reported LBP that was chronic and worse at night, with radiating pain down the left leg.  On admission, the triage nurse noted ROM within normal limits.  There was no acute distress noted.  Physical examination showed tenderness over the paraspinal muscles in the lumbar region and did not address ROM.  

At the 20 March 2007 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported LBP.  He reported 4 incapacitating episodes within the last 12 months lasting 1-2 days.  The CI also reported radiating pain in both legs with numbness and tingling in the knees and feet, stiffness, and spasms with occasional use of a back brace.  He denied bowel or bladder problems.  Physical examination showed normal gait and posture with normal spinal curvatures.  There was tenderness in the lumbar region with no muscle spasm or guarding.  Thoracolumbar ROM recorded active flexion to 35 degrees and combined ROM of 170 degrees (normal 340).  There was no additional limitation with repetitive motion, no weakness, and no lack of endurance.  Lower extremity strength, sensation, and reflexes were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing tenderness and motion limited by pain.  The VA rated the low back condition 20%, coded 5010-5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of forward flexion.  

The panel noted that low back ROM at the MEB NARSUM examination supported a 10% rating, while at both the DD Form 2808 and VA examinations the ROM supported a 20% rating.  The panel considered the variable ROMs in evidence and assigned greater probative value to the VA examination; as it provided complete thoracolumbar ROM and included repetition of ROM.  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 VA examination.  Although the CI did have intervertebral disc syndrome, there was no evidence in the record of incapacitating episodes prior to separation; and at the VA examination, the CI reported 4 incapacitating episodes of 1 to 2 days duration each.  Even if the self-reported episodes are accepted as meeting the definition of incapacitating episodes according to the VASRD (which requires physician prescribed bedrest), there was no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months for higher rating.  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 LBP condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	

The following documentary evidence was considered: 

Exhibit A.  DD Form 294, dated 20170217, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans Affairs Record 

AR20180004070, 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 been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure