RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00703
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040611

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an activated National Guard E4, Military Police, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  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 – 20040413 	VARD - 20041001	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Residuals, Injury, Lumbar Spine	5237-5243	10%	20040629	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s condition began after a fall on stairs.  An MRI showed degenerative disc disease (DDD) at L3-4 and L4-5 without nerve root impingement.  He improved sufficiently to deploy, but then reinjured his back while carrying cases of water in August 2003.  A repeat MRI continued to show multilevel DDD.  

The 17 March 2004 MEB NARSUM orthopedic examination, 3 months prior to separation, noted complaints of persistent, but improved, chronic back and right leg pain.  The physical examination showed tenderness, but spasm was not recorded.  Thoracolumbar range of motion (ROM) measurements were flexion of 90 degrees (normal 90), extension of 5 degrees (normal 30), right and left lateral flexion of 45 degrees (normal 30) bilaterally.  Rotation was not recorded.  A provocative test for nerve root irritation was positive.  The motor examination was normal.  

At the 29 June 2004 VA Compensation and Pension (C&P) evaluation, less than 1 month after separation, the CI reported constant pain in the lower right back associated with intermittent paresthesia on the right side.  He also reported muscle spasms in the lower back and morning stiffness.  He denied loss of bowel or bladder control.  Physical examination showed a normal gait.  Thoracolumbar range of motion (ROM) measurements showed flexion of 60 degrees and combined ROM of 210 degrees (normal is 240) after repetition, with pain at the end of flexion.  Sensation and strength were normal.  He was able to heel and toe walk as well as squat.  There was no evidence of weakness, fatigue or lack of endurance.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness.  The VA also rated the back condition 10%, dual coded 5237-5243, (lumbosacral strain - intervertebral disc syndrome), citing incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  

The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion at 60 degrees as reported on the C&P examination proximate to separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the chronic low back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends no change and elected not to submit a minority opinion.  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	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161210, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004750, 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 
.
Sincerely,					      
Enclosure