RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01211
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E5, Unit Supply Specialist, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  In addition to the back condition, the CI also 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 - 20061002	VARD - 20070518	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Multilevel Degenerative Disc Disease, Lumbar Spine	5299-5239	10%	20070406	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI developed low back pain in 2001 that gradually worsened without trauma or injury.  Plain films of the lumbar spine revealed degenerative disc disease at L4-L5 and L5-S1.  An MRI showed mild disc bulges at L4-L5 and L5-S1.  Conservative treatment was unsuccessful and the CI was not a surgical candidate.  

At the 8 February 2006 physical therapy (PT) evaluation, 8 months prior to separation, the CI complained of chronic back pain.  Physical examination showed a normal gait, but there was tenderness and mild paraspinal atrophy.  Range of motion (ROM) testing showed lumbar flexion of 80 degrees (normal 90) with extension of 25 degrees (normal 30) and lateral bending of 25 and 15 degrees (normal 30).  

The 14 August 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of slight but constant pain.  Flares were reported with diffuse 8-9/10 pain along the entire spine.  Physical examination showed the CI was able to get up into a standing position without any apparent discomfort.  ROM testing was limited due to a flare-up, but forward flexion was 55 degrees with combined ROM was 180 degrees (normal 240).  There was tenderness but no spasm.  Heel and toe walk was normal.  

At the 6 April 2007 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported constant 5/10 lumbar pain which radiated to the mid back.  Physical examination showed a normal gait.  The ROM study showed flexion of 70 degrees and combined ROM of 210 degrees, “limited by stiffness.”  There was no additional limitation of motion with repetitive testing.  X-rays showed multilevel disk disease, osteophyte formation and degenerative changes of the sacroiliac joints.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing tenderness and limitation of motion ROM limitation due to pain not mechanical factors, with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion.  The VA rated the back condition 10%, coded 5299-5239 (spondylolisthesis or segmental instability) based on the C&P examination, citing ROM limited by stiffness.  

The panel deliberated the probative value of the examinations in evidence, and the majority adjudged the NARSUM examination to be closest to separation, most comprehensive and highest in probative value for rating at separation.  The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the NARSUM 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the back 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 but does not elect to submit a minority opinion.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	

 XXXXXXXXXX

Dear XXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified to 20% 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 and to the counsel you listed on your application.