RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02351
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090613

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Wheeled Vehicle Mechanic, medically separated for “low back pain (LBP)” with a disability rating of 10%.

CI CONTENTION:  “If I was just 20%, why is it that I am now at 60% with the same issues?”  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 - 20090303	VARD - 20091230	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5299-5237	10%	Thoracolumbar Spine Degenerative Disc Disease with Radiculopathy	5242	20%	20091119	
Left Knee Strain	Not Unfitting	Left Knee Loose Osteochondral Body	5099-5020	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in 2006 without a specific injury.  An MRI in December 2008 revealed normal paravertebral soft tissues.  Vertebral body signal was normal; however, there was a moderate T7 central and anterior compression fracture thought to be old.  There were Schmorl’s node herniation into the superior endplates of T9, T10, T11 and T12.  There was a T7-8 disc protrusion effacing the anterior subarachnoid space and a T11-12 disc protrusion and mild bilateral neural foramina stenosis.

At the 13 January 2009 MEB physical therapy examination, 5 months prior to separation, the CI reported LBP.  Physical examination showed thoracolumbar goniometric-measured range of motion (ROM) of flexion to 85 degrees (normal 90) and combined ROM was 205 degrees (normal 240); painful motion was elicited.  

The 28 January 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of chronic LBP.  Physical examination showed a positive Waddell sign for axial loading (inappropriate response to spinal pain or tenderness).  Repetitive thoracolumbar goniometric-measured ROM was flexion to 70 degrees and combined ROM was 185 degrees; painful motion was present.

At the 19 November 2009 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported intermittent LBP.  He was working full-time as a security guard with no loss of days from work during the last 12-month period.  Physical examination showed a normal gait without back spasms.  Straight leg raise testing for radiculopathy was positive.  Repetitive thoracolumbar ROM was flexion to 45 degrees and combined ROM was 160 degrees; painful motion was present.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing painful motion.  The VA rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion.

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) or combined ROM (greater than 120 degrees but not greater than 235 degrees), as recorded on the corroborating MEB physical therapy and MEB NARSUM examinations 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 low back condition.

Contended PEB Condition:  Left Knee Sprain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the left knee sprain condition 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 20170228, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180015115, 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