RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01936
BRANCH OF SERVICE:  army	SEPARATION DATE:  20060714

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

CI CONTENTION:  The VA gave him a higher rating for his back condition.  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 - 20060427	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5239	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began insidiously in 2003.  A lumbar MRI showed spondylolisthesis with spondylolysis at L5-S1 and degenerative disc disease at L4-5; surgery was not recommended.  
During the 3 March 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported that other than steady back pain and numbness in his toes, he felt healthy.  Physical examination showed paraspinal tenderness and pain-limited motion in all planes of movement.  Motor strength and reflexes were normal.  The physical therapy (PT) range of motion (ROM) study the same day showed, after repetition, flexion of 50 degrees normal 90) and combined ROM of 165 degrees (normal 240), limited by pain.  
The 17 April 2006 MEB NARSUM examination, 3 months before separation, noted CI complaints of back and left leg pain, with outer left toe numbness and pain aggravated by running, sit-ups, bending, walking, flutter kicks, sitting, lifting and wearing gear.  The examiner noted normal sensation and reflexes.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5239 (spondylolisthesis or segmental instability), citing pain limited motion and tenderness.  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 PT 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 recommends a disability rating of 20% for the back condition, coded 5239.  

BOARD FINDINGS:  In the matter of the chronic back pain, the panel recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  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 Back Pain	5239	20%	

[AR Number], XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
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 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.