RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00617
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20081113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Human Intelligence Collector, medically separated for “lumbosacral strain” with a disability rating of 20%.  

CI CONTENTION:  The VA rated the conditions at 40%.  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 - 20080805	VARD - 20090304	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain 	5237	20%	Herniated Nucleus Pulposus Lumbar Spine	5239	20%	20081007	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in February 2006 after being exposed to an IED blast while deployed.  MRI studies revealed disc bulging with stenosis at L4-5.  A physical therapy (PT) appointment on 16 May 2008, 6 months prior to separation, recorded flexion of 50 degrees (normal 90) and combined ROM of 155 degrees (normal 240).  Painful motion was present.  

The 6 June 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of low back pain (LBP) associated with intermittent numbness and tingling in both legs, which worsened with prolonged sitting or walking.  His physical examination (PE) noted a normal gait and no evidence of spinal tenderness, spasms, atrophy or deformity.  His back ROM was noted as decreased and limited when sitting for the examination.  At the 14 July 2008 physical medicine examination, there was no tenderness on palpation of the right or left paraspinal regions and the lumbosacral spine exhibited a normal appearance.  EMG studies were normal.  

At the 7 October 2008 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported LBP with radiation to the bilateral legs, aggravated by prolonged standing or walking for more than 30 minutes and during exercise.  No flare-ups of back pain were reported and there were no incapacitating episodes within the last 12 months.  His PE revealed an antalgic gait with no assistive device needed.  Paraspinal muscle tenderness and painful motion was present.  Peripheral muscle strength was normal without atrophy.  Thoracolumbar ROM measurements were forward flexion to 45 degrees and extension to 0 degrees.  All other directional ROM components were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbosacral strain), citing pain, forward flexion and additional functional loss from fatigue and lack of endurance.  The VA also rated the back condition 20%, coded 5239 (spondylolisthesis or segmental instability), based on the C&P examination, citing limited active forward flexion, paraspinal tenderness, muscle spasm and functional impairment due to pain on active 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 PT examination as well as the VA examination.  The panel also considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back 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 20170214, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20180004896, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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.

Sincerely,					      
Enclosure