RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00785
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070711

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Wheeled Vehicle Mechanic, medically separated for “chronic back pain” with a disability rating of 20%.  

CI CONTENTION:  In addition to his back condition, he also requested several other conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) be reviewed.  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 - 20070608	VARD - 20070920	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain 	5235	20%	Residuals, Compression Fracture and Degenerative Disc Disease, Low Back	5237	40%	20070809	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in November 2006 after a motor vehicle accident in Iraq.  X-ray studies revealed a compression fracture at L3 confirmed by MRI with a loss of height of less than 25%.  The MRI also showed a disc bulge at L2-3 without nerve impingement.  There was no surgical indication.  At the 23 April 2007 physical therapy (PT) range of motion (ROM) study, 3 months before separation, the examiner noted no tenderness, muscle spasm or guarding, but then indicated the CI had an abnormal gait due to muscle spasm or guarding.  Thoracolumbar ROM measurements, after repetition, were flexion of 10 degrees (normal 90) and combined ROM of 125 (normal 240), with painful motion.  The 25 May 2007 MEB NARSUM examination, 2 months prior to separation, noted frequent back pain that extended into the buttocks and thighs.  Incapacitating episodes were not mentioned.  Physical examination showed tenderness and mild spasm.  ROM measurements were not provided.  

At the 9 August 2007 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported back pain that radiated into his hips, and was exacerbated by standing, walking or driving.  Physical examination showed tenderness, muscle spasm and a limping gait.  The examiner stated that “alignment of the spine [was] quite good.  There [was] a questionable mild kyphos in the L2 area.”  ROM measurements showed flexion of 30 degrees (normal 90) and combined ROM of 140 (normal 240) with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5235 (vertebral fracture or dislocation), citing thoracolumbar ROM limited by pain and an antalgic gait.  The VA rated the back condition 40%, coded 5237 (lumbosacral strain), based on the C&P examination, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the PT and VA examinations.  There was no evidence of ankylosis to justify the next higher, 50% rating.  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 recommends a disability rating of 40% for the back condition, coded 5235.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5235 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain due to L3 Compression Fracture	5235	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170215, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004906, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure