RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02439
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040319

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Military Policeman, medically separated for “chronic subjective back pain, due to lumbar degenerative disk disease without neurologic abnormality” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20040217	VARD - 20050310	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain…	5299-5237	10%	Lumbosacral Spine Degenerative Disk Disease	5242	0%	20041228	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in February 2001 after a skiing fall.  He aggravated his back condition during active duty training in July 2001 and again in 2003 while wearing full body amour and performing sit-ups.  A lumbar spine MRI performed in December 2003 showed mild L3-4, L4-5 and L5-S1 disk protrusions with degenerative changes.  There was no surgical indication.

At the 23 September 2003 MEB NARSUM examination, 6 months prior to separation, the CI reported back pain.  Physical examination revealed the ability to heel and toe walk.  He had burning in the right mid-back region.  Reflexes were normal.  The 27 January 2004 MEB physical therapy range of motion (ROM) examination, 2 months before separation, revealed lumbar flexion to 80 degrees (normal 90) and combined ROM of 210 degrees (normal 240); painful motion was not addressed.  

At the 28 December 2004 VA Compensation and Pension (C&P) examination, 10 months after separation, the CI reported back pain.  Physical examination showed a normal gait and posture.  Lumbosacral flexion was 90 degrees and combined ROM was 230 degrees; painful motion was not addressed.  There was a 15% loss in ROM after repetition (flexion to 75 degrees and combined ROM to 195 degrees).  The neurologic examination was “intact.” The examiner opined that the CI had mild loss of function due to pain and no radiculopathy.  

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 combined ROM.  The VA rated the back condition 0%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination citing a non-compensable examination.  

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 recorded on the MEB physical therapy and VA examinations.  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 the alternate VASRD formula for that condition.  Lastly, there was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that an additional disability rating was not justified on this basis.  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.  

BOARD FINDINGS:  In the matter of the back 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

AR20180015174, 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