RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01628
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Military Police, medically separated for “back pain with degenerative disc disease” 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 - 20051216	VARD - 20070427	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain with Degenerative Disc Disease (DDD)…	5241-5243	10%	DDD and Arthritic Disease, Thoracolumbar Spine, S/P  Fusion Surgery	5010-5237	10%	20070123	
Major Depression 	Not Unfitting	Major Depressive Disorder	9434	30%	20070124	
Diarrhea NOS	Not Unfitting	Diarrhea	7399-7319	NSC	20070123	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI had a chronic fifteen year history of back "problems” that were exacerbated during a deployment to Iraq in 2003.  The CI denied any specific injury or trauma.  An MRI done on 5 June 2004 was notable for DDD with disc bulging at L4-L5 and L5-S1, left S1 nerve root compression, and central lumbar canal stenosis.  The CI was referred to neurosurgery for evaluation in September 2004, resulting in L4-L5 anterior lumbar decompression with arthrodesis and an anterior lumbar plating at L5-S1.  Following surgery, he was released back to his civilian job without restrictions.  At the 28 September 2004 post-operative neurosurgery report, 17 months prior to separation, the CI stated that overall his abdominal wound and back wound were healing well and the pain was getting better.  The examiner reported that overall the CI was neurologically intact and strength was 5/5.  The impression was “two weeks status post ALIF of L4-5 and L5-S1 with cages and posterior spinal fusion of L4-5 with sextant instrumentation, doing well.”  

The 5 October 2005 MEB NARSUM examination, approximately 4 months prior to separation, included reports that the CI did not feel he could perform in his military specialty and many of his military duties.  He also was concerned because he did not feel he could perform his civilian job duties either.  Physical examination showed a normal gait and no tenderness or edema.  There was normal flexion and extension of the neck and back with mild pain in the lumbar spine with extremes of flexion.  The extremities were normal in appearance, with no visible atrophy, no spasms or fasciculation in leg muscles, and negative bilateral straight leg raise tests.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 6 October 2005 showed flexion of 60 degrees (normal 90) and combined ROM of 180 degrees (normal 240) after repetition.  

At the 24 January 2007 VA Compensation and Pension (C&P) examination, 11 months after separation, the CI continued to have LBP, rated at 5 on a scale of 10.  Physical examination showed a normal gait, no apparent back pain, 5/5 strength, negative bilateral straight leg raise tests, and no tenderness.  Neurologic examination of the lower extremities was normal.  Thoracolumbar ROM measurements showed flexion of 65 degrees and combined ROM of 135 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded analogously to 5243 (intervertebral disc syndrome), based on the MEB PT examination, citing pain with a passive ROM of 66 degrees flexion and a normal gait.  The active ROM was 60 degrees, which decreased slightly with repetition.  The condition existed prior to service, but was compensable.  The VA also rated the low back condition 10%, coded analogously to 5237 (lumbar spine strain), based on the C&P examination, citing flexion of the thoracolumbar spine limited to 65 degrees with pain.  

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) as reported on the MEB PT examination.  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 low back condition, coded 5237.  

Contended PEB Conditions.  Major Depression and Diarrhea NOS.  The panel’s main charge is to assess the fairness of the PEB’s determination that the major depression in remission and diarrhea NOS conditions were not unfitting.  The major depression in remission and diarrhea NOS were not profiled or implicated in the commander’s statement, and both were medically acceptable.  On 3 August 2005, a military psychiatric evaluation to assess fitness for duty found that the CI met retention standards, and that there was no need for a psychiatric MEB.  There was no performance-based evidence from the record that the 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 major depression in remission and diarrhea NOS conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low 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 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 the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain with DDD…	5237 	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180005409, 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