RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00662
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090627

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Human Resources Specialist, medically separated for “degenerative arthritis of the spine” with a disability rating of 20%. 

CI CONTENTION:  In addition to the unfitting back and not-unfitting right ankle and gastric conditions, he requested review of 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 - 20090507	VARD - 20090929	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine	5242	20%	DDD of the Lumbar Spine	5242	10%	20090819	
Right Ankle Pain	Not Unfitting	Right Ankle Strain	5271	0%	20090819	
Delayed Gastric Emptying	Not Unfitting	Gastroparesis	7399-7308	0%	20090819	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in May 2006 after lifting tent poles, but he did well until December 2007 after slipping on ice and reinjuring his back.  An MRI showed mild degenerative disc disease (DDD) with bulging at L4-5 and L5-S1.  An 18 November 2008 family practice clinic examination showed “marked decrease[d] ROM in lumbar spine.”     

During the 24 March 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported constant back pain.  Physical examination showed normal gait and spinal contour without spasm, but there was tenderness.  The range of motion (ROM) examination showed flexion of 35 degrees (normal 90) and combined ROM of 145 degrees (normal 240), with pain in all planes of motion.  The 27 March 2009 MEB NARSUM examination, noted complaints of low back pain that limited his ability to perform impact activities.  Physical examination reiterated the 24 March 2009 findings.

At the 19 August 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported stiffness, spasms, decreased motion, weakness and low back pain aggravated by lifting, twisting or bending.  He denied incapacitation.  Physical examination showed normal gait and posture.  The ROM examination showed normal flexion and combined ROM with pain at the end range of flexion and extension.  There was no additional limitation after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), citing 35 degrees of flexion.  The VA rated the back condition 10%, coded 5242, based on the C&P examination, citing X-ray evidence of arthritis and full ROM with pain.  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 examination.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Condition:  Right Ankle Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was profiled, implicated in the commander’s statement, and failed retention standards.  The panel noted that multiple NCO evaluation reports documented that the CI successfully met military physical fitness requirements.  Also, despite acute episodes of right ankle strains, there was adequate duty performance until referral into the disability evaluation system.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

Contended PEB Condition:  Delayed Gastric Emptying.  The condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the degenerative arthritis of the spine and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right ankle pain and delayed gastric emptying 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.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

AR20180014697 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.