RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02289
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Fire Support Specialist, medically separated for “chronic low back pain” with a disability rating of 0%.   

CI CONTENTION:  Review requested of his back pain and additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20060915	VARD - 20070216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	0%	Postoperative Lumbar Fusion with Scar	5241	10%	20061018	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent a lower lumbar fusion at L5-S1 in May 2005.  Post-operatively, his pain was markedly improved and, although he was pleased with the result, the CI continued to have difficulty performing the duties of his military occupational specialty.   During the 3 February 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, physical examination revealed a normal gait and no tenderness.  Extension and lateral flexion to the right were decreased.  The 16 August 2006 MEB NARSUM examination, 3 months prior to separation, noted the CI was able to perform all his duties in garrison.  He was able to run and do most fitness test exercises.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy on 24 August 2006 showed flexion of 65 degrees (normal 90) and combined ROM of 180 degrees (normal 240) after repetition, and associated with painful motion.  Strength was normal.  The American Medical Association pain rating was mild and intermittent.  

At the 18 October 2006 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported 1/10 constant achy pain, which increased to 2/10 with cold weather.  Physical examination showed a normal posture and gait, however during the lumbar spine examination, it was noted that the CI walked with a limp favoring the left side.  Spasms were not addressed.  ROM showed flexion of 90 degrees and combined ROM of 230 degrees.  There was painful motion with no additional limitation after repetitive movement.  He was observed to have lain down and sat up slowly.  He was neurologically intact.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5241 (spinal fusion), citing ROM limited by pain.  The VA rated the postoperative lumbar fusion condition 10%, also coded 5241, based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  The panel 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 NARSUM examination.  There was also evidence of painful motion, which also met criteria for 10% rating.  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 evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5241 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 Low Back Pain	5241	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007813, 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 to 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