RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE: PD-2017-02435 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070502

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

CI CONTENTION: “The rating received upon separation from Army service was 10% while the Department of Veterans Affairs rating awarded was 30%. Conditions which rendered veteran unfit for service have continually degraded over time and veteran now has a combined disability rating of 80.”  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 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 - 20070131	VARD - 20070717	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	DDD Lumbar Spine	5242	10%	20070421	
Chronic Right Hip Pain	Not Unfit	DJD Right Hip	5252-5010	10%	20070421	
Chronic Intermittent Left Ear Tinnitus	Not Unfit	Tinnitus in the Left Ear	6260	0%	20070404	
Sensorineural Hearing Loss	Not Unfit	Left Hearing Loss	6100	0%	20070404	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP). According to the service treatment record and MEB narrative summary (NARSUM), the CI’s chronic LBP began in 2000 after slipping and falling during a training event. Radiographic studies in 2006 showed discogenic disease at L4-5 and L5-S1 with a hemangioma in L4 and an annular tear at L5-S1 with neural foraminal stenosis, but the CI was not a surgical candidate. During the 18 October 2006 MEB examination (recorded on DD Forms 2807- 1 and 2808), 6 months prior to separation, the CI reported constant LBP. Physical examination revealed decreased range of motion (ROM) of the thoracolumbar spine without tenderness or spasm. Heel and toe walking were normal, and the CI was intact neurologically. X-ray of the sacroiliac  joint  was  normal.  The  thoracolumbar  ROM  study  by  physical  therapy  (PT)  on   26 October 2006 showed pain-limited flexion of 60 degrees (normal 90) and combined ROM  of

175 degrees (normal 240), after repetition. The 30 November 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic LBP. Physical examination showed a mild loss of lumbar lordosis, but gait was non-antalgic and there was no evidence of spasm or guarding. Tenderness was present and ROM was limited due to stiffness and pain. The neurologic examination was essentially normal.

At the 21 April 2007 VA Compensation and Pension (C&P) examination, 2 weeks prior to separation, the CI reported constant, localized LBP with a severity of 7/10. Pain was elicited by physical activity. There was no incapacitation due to the spine or functional impairment resulting from the condition. Physical examination revealed no evidence of radiating pain on movement. There was no ankylosis, abnormal spine curvature, muscle spasm or tenderness noted. The ROM evaluation showed forward flexion of 80 degrees and combined ROM of 205 degrees with pain in all planes of motion. The examiner noted no additional limitation of spinal joint function due to pain, fatigue, weakness, lack of endurance or incoordination after repetition. There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement. X-rays of the thoracic and lumbosacral spines showed no significant radiographic abnormalities.

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 tendernes. The VA also rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined ROM greater than 120 degrees but not greater than 235 degrees.

The panel agreed that a 10% rating 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 reported on the VA examination proximate to separation. Although the NARSUM examination found forward flexion to 60 degrees, after repetition, the panel held the VA examination was more probative for rating purposes as that examination was the most thorough, VASRD compliant and closest to the date of separation. Furthermore, IAW VASRD §4.7 (higher  of two disability ratings), the overall disability picture more closely approximated 10% as the appropriate level of disability in this case. 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 IVDS 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: Right Hip Pain, Intermittent Left Ear Tinnitus, and Sensorineural Hearing Loss. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting. Neither the right hip pain nor the intermittent left ear tinnitus were profiled and the hearing loss was only profiled at H2. None of the conditions were implicated in the commander’s statement or noted 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended right hip pain, intermittent left ear tinnitus and hearing loss, the panel recommends no change from the PEB determination 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 determinations.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170301, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

PD-2017-02435
AR20190015544, XXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXX

	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

PD-2017-02435