RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02241
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E2, Trainee, medically separated from the Temporary Disability Retired List (TDRL) for “lumbago” with a disability rating of 10%.  

CI CONTENTION:  “Degenerative disease at L5-S1 progressively worse, C5-C6 worse.  Left shin pain continues unabated.  I am sometimes unable to go to the office and have to work from home.  I can’t be in a car for very long.  The pain is constant and prevents me from exercising properly.”  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 - 20091023	VARD – 20090326 & 20110708	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5299-5237	10%	L5-S1 DDD Sciatica	5242	10%	20080727
and
20101227	
Left Leg Pain 	Medically Acceptable 	Traumatic Stress Fracture, Left Shin	5299-5262	20%		
Cervical Degenerative Disc Disease [DDD], C5-6 w Mild Retrolisthesis (U-2)	Not Unfitting	Cervical DDD, C5-6 Mild Retrolisthesis	5242	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Lumbago.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in December 2006 while he was doing squat jumps which caused a wrenching pain in his lower back.  An MRI documented lumbar discogenic disease (L5-S1 broad based posterior disc bulge).  He was not a surgical candidate and was placed on the TDRL in September 2008 with the back rated 20% for limited forward flexion (combined 30% with leg condition).  

At the 5 May 2009 TDRL MEB NARSUM examination, 5 months prior to separation, the CI complained of back pain with sitting over 15-20 minutes, standing over 10-15 minutes, or walking over 20 minutes.  He had pain (rated at 6/10) 20 hours a day and 4 hours of “restless sleep."  The examiner noted normal spine alignment with no local tenderness, and that he could heel and toe walk.  Thoracolumbar range of motion (ROM) measurements showed flexion of 80 degrees (normal 90) and combined ROM of 240 degrees (normal), with some pain at end ranges.  

At the 27 December 2010 VA Compensation and Pension (C&P) examination, 14 months after separation, the CI reported constant daily back pain with radiation.  Physical examination showed a normal gait and spinal contour.  Thoracolumbar ROM measurements were flexion of 70 degrees and combined ROM of 210 degrees.  Painful motion was present and there were no measurement changes on repetition.  

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 forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  The VA also rated the back condition 10%, analogously coded 5242 (degenerative arthritis of the spine), based on the C&P examination(s), citing the VASRD 10% ROM criteria and painful or pain-limited motion.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the TDRL NARSUM examination proximate to separation.  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 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 back condition.  

Contended PEB Conditions:  Left Leg Pain and Cervical DDD, C5-6 with Mild Retrolisthesis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The 23 October 2009 PEB stated the left leg pain was medically acceptable citing a normal left leg/knee and motor examination, and that the CI could heel and toe walk.  The orthopedist opined, "His left leg symptoms have largely resolved and do not limit his activities."  The CI provided a statement in rebuttal indicating his leg pain continued and limited his running, but withdrew his appeal for a formal PEB.  The cervical DDD was profiled (U2), but not implicated in the commander’s statement, and did not 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left leg pain and cervical condition, the panel recommends no change from the PEB determinations as not unfitting.  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 20080308, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

 AR20190007490, 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