RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00846
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20090315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic 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 - 20090102	VARD - 20090609	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Thoracic Spine Compression Fracture with Degenerative Changes	5242	20%	20090129	
Dyslipidemia	Not Unfitting	Hypertension	7101	NSC	20090129	
Shortness of Breath w/ Running	Not Unfitting	Exercise Induced Asthma	6602	10%	20090129	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in April 2004 after he injured his back in a parachute jump.  X-rays from 3 August 2006 showed no abnormalities.  Nuclear medicine bone imaging done in August 2006 was negative.  An MRI dated 25 May 2007 reported a mild wedge compression fracture involving the superior endplate of the T11 vertebral body.  After a deployment to Iraq, which ended in December 2007, the CI continued to experience pain.  There was no surgical indication.  
At the 10 November 2008 MEB NARSUM examination, 4 months prior to separation, the CI reported a "constant ache" with an average pain level of 4-5/10 on the pain scale. When he tried to lift a weight, his pain increased in intensity to an 8 and felt "sharp.''  The examiner referred to the Form 2808 for the general physical examination, which reported no abnormalities identified.  The MEB examiner noted that range of motion (ROM) measurements were to be performed at a later date.  A 15 December 2008 ROM examination form, signed by the MEB examiner and attached to the MEB NARSUM, 3 months prior to separation, reported a normal gait and posture.  There was no tenderness, spasm, or deformity.  Thoracolumbar ROM recorded a forward flexion of 65 degrees with pain (normal 90) and a total combined ROM of 215 degrees (normal 240) after repetition.  

At the 29 January 2009 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported avoidance of repetitive lifting and bending activities. He stated that he was unable to lift more than 20 pounds. The CI denied incapacitating episodes of pain in the last 12 months.  Physical examination showed a normal gait.  There was no focal tenderness, abnormal spinal contour, spasm, or guarding.  ROM measurements were recorded as forward flexion to 60 degrees with pain and a combined ROM of 200 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded analogously as 5237 (lumbar spine strain), citing ROM at 65 degrees forward flexion.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing flexion limited to 60 degrees.  

The panel noted that the VA examination 2 months prior to separation and NARSUM ROM measurements 3 months prior to separation, resulted in the assignment of different rating percentages.  Panel members agreed that the evidence, which included radiographic imaging of an old healed compression fracture approximately 30% of the T11 body, service treatment documentation of mild pain with motion, a normal gait without evidence of spasm, and NARSUM measurement of 65 degrees forward flexion, most closely approximated the 10% disability rating criteria.  Therefore, the panel placed lower probative value on the single VA ROM measurement, which met the criteria for a 20% rating.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the examination 3 months before separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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:  Dyslipidemia.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement, nor judged to 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.  

Contended PEB Condition: Shortness of Breath (SOB) w/ Running.  The panel’s main charge is to assess the fairness of the PEB’s determination that the SOB with running condition was not unfitting.  The SOB with running was not implicated in the original commander’s statement, but was noted after the examiner requested an updated commander’s statement.  At the same time, the NARSUM examiner noted in the NARSUM that the SOB with running condition was an additional diagnosis that did not cause the CI to fall below retention standards.  The SOB with running condition was not profiled nor judged to fail retention standards.  There was no performance-based evidence from the record that the SOB with running 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended conditions, the panel recommends no change from the PEB determinations of not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends there be 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 20170212, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004920, 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