RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02465
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Combat Engineer, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  Review of 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 - 20040114	VARD - 20050518	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lower Back Pain	5237	10%	Lumbar Strain	5237	10%	20040714	
Left ACL Disruption	Not Unfitting	Left Knee Status Post ACL Repair	5257	10%		
Asymmetric Mild Sensorineural Hearing Loss		Left Ear Hearing Loss	6100	0%		
		Right Ear Hearing Loss	6100	NSC		
[Bilateral] Pupillary Membrane		Right Eye Central Cornea Scar	6099-6001	0%	20040710	
Adjustment Disorder		Dysthymia	9433	10%	20040708	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 1997 without any notable trauma.  He separated from the military in 1999, and then reenlisted in 2001.  The LBP recurred in 2002 after carrying a pack.  X-rays demonstrated mild degenerative disc changes at T12-L1.  At a neurosurgical visit on 4 March 2003 the examiner raised the possibility of meralgia paresthetica because of long standing back pain and the unusual complaint of intermittent penile numbness as well as anterior thigh numbness bilaterally.  An MRI, dated 5 March 2003, demonstrated degenerative disc disease at L4-5 and L5-S1 with a disc protrusion at L5-S1.  X-rays dated 25 March 2003 showed diminished lordosis with slight retrolisthesis (backward sliding of a vertebra over the one below it) of L4 on L5.  X-rays dated 30 June 2003 showed mild thoracolumbar dextrocurvature (curvature to the right), which may have been positional.  An orthopedic consultation dated 11 July 2003 reported MRI findings of disk bulging at L2-3, L3-4, and L4-5 without any obvious nerve root compression.  On examination the CI had no tenderness and essentially normal range of motion (ROM) of the lumbar spine.  

During the 15 July 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported chronic low back pain.  Physical examination recorded “full” spine ROM without muscle spasm.  Bilateral lower extremity sensation, reflexes and strength were normal. 

At the 13 August 2003 MEB NARSUM, 8 months prior to separation, the CI denied bowel or bladder incontinence, lower extremity weakness, numbness or tingling.  Physical examination showed normal bilateral lower extremity strength, sensation and reflexes, and straight leg raise testing (to determine nerve root irritation) was negative.  Back flexion was 45 degrees (normal 90) and combined ROM was incomplete.  Painful motion was not addressed.  The CI had some tenderness of the lower back.    At an acute care examination on 8 October 2003, 6 months before separation, the CI reported 3 days of back spasm.  Physical examination showed spinal tenderness but no spasm, and he was neurologically intact.  During the 3 February 2004 MEB physical therapy (PT) examination, 2 months prior to separation, physical examination showed normal gait and posture.  Repetitive back flexion was pain limited to 55 degrees and combined ROM was 140 degrees (normal 240).  X-rays dated 6 July 2004 showed mild narrowing of the disc spaces at L4-5 and L5-S1.  

At the 6 September 2005 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI complained of chronic LBP without flare-ups.  Physical examination revealed a normal gait and posture and no spinal muscle spasm.  Sensory, motor strength, and reflex testing were all normal.  Lumbosacral flexion was 90 degrees and combined ROM was 240 degrees.  Painful motion was not addressed.  There was no abnormal lordosis or kyphosis.  Neurologic evaluation was unremarkable.  

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 tenderness.  The VA also rated the back condition 10%, coded 5237, based on the C&P examination, citing the general spine rating criteria for a 10% rating. 

The panel determined the pre-separation MEB PT ROM examination had greater probative value than the post-separation VA examination since it was closer to separation.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the pre-separation MEB PT and MEB NARSUM examinations.  There was no evidence of intervertebral disc syndrome which would provide for a higher rating under that formula.  The panel also noted there was no objective evidence of a radiculopathy with functional impairments (such as weakness) nor performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5237.

Contended PEB Conditions:  Left Anterior Cruciate Ligament (ACL) Disruption, Asymmetric Mild Sensorineural Hearing Loss, Bilateral Persistent Pupillary Membrane and Adjustment Disorder.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Although the commander’s statement implicated the left knee condition, none of the other contended conditions were permanently profiled or judged to fail retention standards.  

Left Anterior Cruciate Ligament Disruption.  On 29 May 2002 the CI underwent arthroscopy with partial lateral meniscectomy and ACL reconstruction.  By 22 January 2003 the CI had full ROM and normal knee strength.  X-rays of the knee dated 30 June 2003 demonstrated mild degenerative disease.  At an orthopedic clinic visit on 1 July 2003 the CI had full ROM and no instability, joint line tenderness or effusion, and there was only minimal discomfort along the patellar tendon.  The examiner indicated the CI should be able to resume normal activities with his knee without any expected long term limitations.  

Asymmetric Mild Sensorineural Hearing Loss.  On 14 July 2003 the CI was noted to have mild sensorineural hearing loss at 4000 and 6000 Hz of the left ear with excellent word recognition.  He was fitted with hearing protection devices.  At an otolaryngology clinic visit on 24 July 2003 the tympanic membranes were normal without retraction.  The examiner’s diagnosis was asymmetric sensorineural hearing loss, greater on the left than the right.  He concluded the hearing loss had minimal impact on duty performance.  On 28 July 2003, an MRI of the internal auditory canals was unremarkable.  

Persistent Pupillary Membrane Type I.  On 22 July 2003 the CI complained of periodic difficulty focusing on distant targets while at the shooting range.  The examiner noted that the CI’s eye examination was normal and noted that persistent pupillary membrane (type 1) is a benign congenital condition that does not affect vision.  Difficulty focusing while at the range was likely due to changing refractive error supported by the fact that with a new, stronger prescription, the CI experienced some relief.  From an ophthalmologic perspective, the CI met retention standards.  

Adjustment Disorder.  The panel noted that adjustment disorders are not physical disabilities. 

There was no performance-based evidence from the record that any of the contended 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 determinations 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 a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left ACL disruption, hearing loss, persistent pupillary membrane and adjustment disorder conditions, 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.

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	5237	20%	

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

AR20190007903, 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 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