RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02488
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantryman, medically separated for “chronic thoracolumbar spine pain” with a disability rating of 0%.  

CI CONTENTION:  No specific contention was made.  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 - 20060814	VARD - 20070301	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Spine Pain	5237	0%	Lumbar Spine Degenerative Disc Disease (DDD)	5242	10%	20070111	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Thoracolumbar Spine Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI had a long history of back pain exacerbated in March 2006 by a vehicular accident.  Imaging (MRI) demonstrated “mild” DDD (“minimal” bulging L3/4 and L4/5 without significant neural involvement).  Neurological examinations were normal and surgery was not recommended.  All provider entries in the STR, after recovery from above accident, documented grossly normal range of motion (ROM) albeit with note of.  There was STR documentation of normal gait and spinal contour with no contrary evidence.  

The 21 June 2006 MEB NARSUM examination, 5 months prior to separation, documented a complaint of “constant” low back pain that would “vary from moderate to severe” and was exacerbated by prolonged standing, running, and load-bearing.  The physical examination recorded normal neurological findings and gait and “significant” tenderness without note of spasm or abnormal contour.  The NARSUM examiner characterized ROM as “full” specifying pain on flexion.  There were no formal ROM measurements in the STR.

The 11 January 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, documented nonspecific back pain that interfered with lifting and carrying.  The physical examination recorded a normal gait and spinal contour and neurological findings, and no spasm or tenderness.  Measured ROM was flexion to 85 degrees (normal 90) and combined ROM of 225 degrees (normal 240), specifying painful motion but no ROM degradation with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar condition 0%, coded 5237 (lumbosacral strain), citing full ROM and noting the presence of tenderness.  The VA rated the condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination and citing the applicable VASRD §4.71a spine criteria for flexion and combined ROM.  

The panel noted that both spinal tenderness (conceded by the PEB) and painful motion (amply documented by the service and VA) are a §4.71a criterion for a minimum 10% rating.  Although the service evidence reflected normal ROM, the only ROM evidence in this case that was compliant with VASRD §4.46 (accurate measurement) was from the temporally probative VA C&P examination.  The latter satisfied the 10% criterion for flexion (greater than 60 degrees but not greater than 85 degrees) and for combined ROM (greater than 120 degrees but not greater than 235 degrees).  The panel thus agreed that a 10% rating was justified by the criteria from the service and VA evidence.  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.  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 lumbar spine condition, coded 5242.  

BOARD FINDINGS:  In the matter of the lumbar spine condition, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.59.  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	
Lumbar Spine Degenerative Disc Disease 	5242	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190006021, 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