RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02174
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060513

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

CI CONTENTION:  “Veteran feels he was unfairly rated by the Army at the time of separation.”  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 - 20060314	VARD - 20060808	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Mid and Low Back Pain	5299-5237	10%	Thoracolumbar Spine Strain with Degenerative Disc Disease	5242	10%	20060517	
Migraine Headaches Without Aura	Not Unfitting	Migraines	8100	0%	20060517	
Adjustment Disorder with Depressive/ Anxious Features	Not Unfitting	Post-Traumatic Stress Disorder	9411	0%	20060503	
Essential Hypertension	Not Unfitting	Hypertension	7101	0%	20060517	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Radiating Mid and Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in May/June 2004 after returning from patrols as a turret gunner on a tactical vehicle.  He was placed on a temporary profile and prescribed a nonsteroidal anti-inflammatory drug (NSAID).  A lumbar spine X-ray in March 2005 showed multi-level degenerative changes, and an MRI verified degenerative disk disease (DDD), mild desiccation and L1-L2 disk height loss.  He was referred to physical therapy for lower back stretching and strengthening exercises, but had no significant symptom relief after 4 weeks.  The CI was referred to the physical medicine and rehabilitation clinic in July 2005, where a trial of Celebrex (NSAID) and Anodyne (analgesic) was initiated.  He continued with the treatment plan for approximately 1 month without any relief and was assigned a permanent P3 profile in October 2005.  He was given an epidural steroid injection in the pain clinic in November 2005, but also this did not relieve his pain.  In December 2005, he was diagnosed with DDD of the lower thoracic and lumbar spine.

The 20 January 2006 MEB NARSUM examination, 4 months prior to separation, noted CI complaints of back pain over the upper lumbar spine which radiated to the right spinal border.  He described the pain as varying from a mild, dull throbbing ache to a constant, sharp, stabbing sensation; surgery was not indicated.  Physical examination showed spinal tenderness.  Repetitive range of motion (ROM) showed flexion to 60 degrees (normal 90) and a combined ROM of 190 degrees (normal 240), with painful motion.

At the 17 May 2006 VA Compensation and Pension (C&P) examination, 4 days after separation, the CI reported constant lower back pain for 2 years which traveled up the back and was elicited by physical activity, but did not cause incapacitation.  Physical examination revealed lumbar spine tenderness, but no evidence of radiation pain, ankyloses, or muscle spasm.  Straight leg raise testing for radiculopathy was negative bilaterally.  After repetition, flexion was 90 degrees and combined ROM was 240 degrees, with painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing painful motion and tenderness.  The VA also rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing spinal tenderness.  Members considered the disparity between the ROM measurements recorded on the MEB NARSUM (60 degrees) and the C&P examination (90 degrees), and determined that the VA examination carried the greatest probative value for rating since it was performed just 4 days after separation.  Therefore, the panel agreed that a 10% rating, but no higher, was justified for objective evidence of painful motion (VASRD §4.40, §4.45, and §4.59) as adjudicated by the PEB.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.

Contended PEB Conditions:  Migraine Headaches without Aura, Adjustment Disorder with Depressive and Anxious Features, and Essential Hypertension.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement, or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic radiating mid and low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170307, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010652, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure