RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02212
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an E5 National Guard, Motor Transportation Operator, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends he should have been medically retired.  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 -20070503	VARD - 20080221	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease Lumbar Spine	5242	20%	20080131	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in September 2005 after twisting it.  An MRI revealed a small herniated disc at L4-L5.  Conservative measures did not relieve symptoms, and an option of surgery was declined.  During the 23 October 2006 MEB NARSUM examination, 8 months prior to separation, the CI complained of back pain that worsened with prolonged sitting, standing, bending, reaching, lifting, running or prolonged walking.  Physical examination showed the ability to stand without any apparent discomfort.  He was able to squat, heel-to-toe walk and had normal stride length and cadence.  The CI grimaced with complaints of pain during range of motion (ROM) testing.  Forward flexion was 75 degrees (normal 90) and combined ROM was 190 degrees (normal 240).  Electrodiagnostic testing was normal.  The 20 March 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, showed limited ROM, but no measurements were recorded.  There was pain with straight leg raise testing.  

At the 31 January 2008 VA Compensation and Pension (C&P) evaluation, 7 months after separation, the CI reported constant pain to the central low lumbar spine and left sacroiliac joint.  Physical examination showed an antalgic gait, attributed to left sacroiliac joint tenderness, and stooped posture.  There was tenderness, spasm, guarding and lumbar flattening.  The ROM study showed forward flexion of 50 degrees and combined ROM of 180 degrees.  Aside from pain, there were no other DeLuca criteria (on repetition).  

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 “minor losses of motion due to pain alone,” with likely application of AR 635-40, B-29.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine) based on the C&P examination, citing reduced ROM of the spine.  

The panel considered the probative value of the examinations in evidence and consensus was that the VA examination was closest to separation, most detailed, and best aligned with the disability picture in the entirety of the record.  It therefore carried the highest probative value for rating at separation.  The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (spine greater than 30 degrees but not greater than 60 degrees) as documented 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel 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 §4.71.  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%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007482, 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