RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02542
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080202

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

CI CONTENTION:  “I don’t believe the rating is correct.”  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 - 20090223	VARD - 20080215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mild Diffuse Disc Bulge at L4-L5 	5299-5242	10%	Diffuse Disc Bulging at L4-5	5239-5242	10%	20071025	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Mild Diffuse Disc Bulge at L4 -L5.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in October 2006 after a motor vehicle accident.  X-rays showed minimal diffuse thoracic spondylosis and mild degenerative disc space narrowing at L4-5 and an MRI showed a disc bulge at L4-L5 with lumbar canal stenosis at L3-L4 and L4-L5. 

At the 25 October 2007 VA Compensation and Pension (C&P) examination, 4 months before separation, the CI reported 7/10 pain on the right side of his lower back, stiffness with movement, weakness and spasms.  The pain was elicited by physical activity, but did not cause incapacitation.  Physical examination showed normal spinal curvature, posture, and gait with no spasm, tenderness or ankylosis.  Straight leg raise testing was negative, bilaterally.  The range of motion (ROM) evaluation showed, after repetition, flexion of 65 degrees (normal 90) and combined ROM of 200 degrees (normal 240) with pain in all planes of motion.  There was no sign of intervertebral disc syndrome.  Motor strength, reflexes and sensation were within normal limits.  

During the 29 October 2007 MEB NARSUM examination, 4 months prior to separation, the CI reported an inability to lift and carry heavy equipment, run, jump or do sit-ups.  Physical examination showed normal spinal contour and gait and he was able to heel-and-toe walk.  There was no muscle atrophy or spasm, but there was tenderness.  The ROM evaluation was performed by physical therapy using both a goniometer and inclinometer and showed flexion of 80 degrees and combined ROM of 210 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing limitation of motion.  The VA also rated the back condition 10%, dual coded 5239-5242 (spondylolisthesis-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.

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).  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 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 20170312, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180015179, 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.