RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01821
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Trainee, medically separated for “persistent low 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 - 20080619	VARD - 20040520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Low Back Pain	5299-5237	10%	Lumbosacral Strain	5237	20%	20080929	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in 2007 after he slipped and fell while carrying his rucksack.  Bone scan was normal and MRI revealed a partial lumbarization of the S1 vertebral body (a congenital anomaly, in which the sacral vertebrae assume the appearance of a lumbar vertebra) and was otherwise normal.  Surgery was not indicated.  Clinic visits and physical therapy evaluations in March and April 2008 documented painful motion in all seven visits with limited range of motion (ROM) of the thoracolumbar spine during six of the seven visits.  ROM at the 4 March 2008 visit showed “full” ROM, the 5 and 21 March visits showed flexion to the distal femur (less than 45 degrees of normal 90 degrees).  The 25 March and 1 April evaluations documented flexion to the knee (approximately 45-60 degrees) and the 28 March and 11 April 2008 visits documented flexion to the proximal third of the tibia (approximately 65-80 degrees).  The 6 June 2008 MEB NARSUM examination, 1 month prior to separation, noted complaints of chronic LBP.  Physical examination showed a non-antalgic gait.  The CI was able to rise on his heels and toes without difficulty.  Spinal tenderness was present.  ROM was flexion to 70 degrees (normal 90) and combined ROM was 220 degrees (normal 240) with pain limited motion.  

At the 29 September 2008 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported occasional low back ache, soreness, and tenderness.  Physical examination showed ROM of flexion to 50 degrees and combined ROM was 150 degrees with painful motion.  X-ray and MRI were reported as normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5237 (lumbosacral strain).  The VA rated the low back condition 20%, coded 5237, based on the C&P examination, citing limitation of flexion.  The panel deliberated the probative value of the disparate examinations in evidence.  The VA examination addressed repetition (DeLuca – not addressed by the MEB) and was more closely aligned with the multiple pre-separation non-goniometric ROM evaluations where flexion most closely approximated the 20% ROM criteria (45-60 degrees); therefore, the panel adjudged that the VA examination had the highest probative value for rating.  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 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 recommends a disability rating of 20% for the chronic low back pain condition, coded 5299-5237.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  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	
Persistent Low Back Pain	5299-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170328, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180005850, 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