RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00891
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070426

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 low back pain” with a disability rating of 10%.  

CI CONTENTION:  The VA rated his back higher, and 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 - 20070103	VARD - 20070917	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Degenerative Disc Disease of the Lumbo-sacral Spine with Associated Thoracic Sprain	5243-5237 	20%	20070621	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with micro discectomy in May 2006 for disc protrusion.  The 24 July 2006 MEB specialty care consult examination, 9 months prior to separation, noted the surgery helped the burning radicular pain; however the CI continued to have LBP that was exacerbated, specifically with sitting.  The examiner noted the CI had received a total of three epidural steroid injections.  Physical examination showed a normal gait.  There was a well-healed incision in his midline lumbar spine, and tenderness was present.  Straight leg raise, reverse straight leg raise, and contralateral straight leg raise were negative.  Strength was 5/5 throughout the lower extremities.  Sensation was intact to light touch.  

During the 31 August 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the CI reported trouble sleeping due to his back injury and that he had pinched nerves.  Physical examination showed a negative straight leg raise test bilaterally.  Motor was 5/5 bilaterally and deep tendon reflexes were 2+ bilaterally.  There was mild pain with flexion at the waist and moderate pain with rotation to the left.  Sensation was grossly within normal limits bilaterally.  The 14 September 2006 physical therapy examination, 7 months prior to separation, noted range of motion (ROM) measurements of the thoracic/lumbar spine showed flexion of 25 degrees (normal 90) and a combined range of motion of 140 degrees (normal 240).  The examiner noted flexion and extension caused more pain than other motions.  

The 15 November 2006 MEB NARSUM examination, 5 months prior to separation, summarized the above 31 August and 14 September 2006 examination results.  At the 21 June 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant spine pain.  Physical examination showed no findings of abnormal spinal curvature, muscle spasms, or tenderness.  ROM was flexion to 50 degrees and a combined ROM of 100 degrees.  Imaging of the thoracic spine showed no abnormalities and imaging of the lumbosacral spine showed degenerative disc disease at L4-5 and L5-S1.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness to palpation, normal strength and sensation, and ROM of 25 degrees of flexion and 5 degrees of extension, limited by pain.  The VA rated the chronic LBP condition 20%, coded 5243-5237 (intervertebral disc syndrome-lumbosacral strain), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees.  The panel judged the VA C&P examination greater in probative value given the proximal time to separation over the MEB NARSUM.  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) and combined ROM (not greater than 120 degrees), as reported on the VA 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 majority recommends a disability rating of 20% for the chronic LBP condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a  The single voter for dissent recommends a rating of 40% and did not elect 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 the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004949, 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