RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00899
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Air Defender, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “My total hysterectomy with removal of ovaries and depression and anxiety was not figured in.”  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 – 20081031	VARD – 20090611	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	10%	Spondylolysis, L5-S1…	5241	20%	20090211	
Abdominal Pain	Not Unfitting	Endometriosis...	7617	50%	20090123	
Depression and Anxiety	Not Unfitting	Anxiety Disorder and Panic Disorder	9400	10%	20090107	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 2007 after falling following abdominal surgery.  Non-operative therapy was unsuccessful and she underwent a fusion at L5-S1 in July 2007.  She healed well after surgery and was without a neurological deficit.  Her gait was normal, but she was no longer able to wear body armor and was referred for MEB.  Formal range of motion (ROM) measurements in physical therapy on 17 July 2008, 7 months prior to separation, showed painful motion which was full before and after repetition for flexion although the combined ROM was reduced at 230 degrees (240 is normal).  The next day in physical examinations the ROM was full but painful.  The 05 October 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of low back pain.  A computerized tomography scan revealed good healing and she reported resolution of her symptoms.  The physical examination showed a normal neurological examination and gait.  There was no paraspinal muscle spasm and tenderness was not recorded.  

At the 11 February 2009 VA Compensation and Pension (C&P) examination, 1 day after separation, the CI reported residual recurrent low back pain and that activity increased the pain.  The physical examination showed flexion of 85 degrees which decreased to 60 degrees after repetition (normal 90).  The remaining measurements were normal and without decrease after repetition.  Painful motion was present.  There was no evidence of muscle spasm or tenderness.  The neurological examination, posture, and gait were normal.  Ambulatory aids were not used.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing evidence of painful motion.  The VA rated the low back condition 20%, coded 5241, based on the C&P examination, citing low back surgery and objective findings showing forward flexion of the thoracolumbar greater than 30 degrees but not greater than 60 degrees.  The panel considered the evidence.  Painful motion was documented on both the MEB and VA ROM measurements.  Both showed near normal motion prior to repetition, but the VA examination showed flexion limited to 60% after repetition.  This examination was more proximate to separation; accordingly, it is assigned a higher probative value for rating the disability at separation.  Flexion limited to 60 degrees supports a rating of 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the chronic low back condition, coded 5241.  

Contended PEB Condition:  Abdominal Pain, Depression, and Anxiety.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The contended conditions were not profiled or implicated in the commander’s statement.  They were judged to meet retention standards.  There was no performance-based evidence from the record that these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended abdominal pain, depression, and anxiety 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.  

The panel recommends that the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	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 

AR20180004952, 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