RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02683
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Tactical Operations Center Enhanced Operator/Maintainer, medically separated for “intervertebral disk syndrome” with a disability rating of 20%.  

CI CONTENTION:  In addition to his back condition, the CI requested review of an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20080821	VARD - 20090415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disk Syndrome	5243	20%	Postoperative Laminectomy of L5-S1	5239	20%	20090224	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Intervertebral Disk Syndrome.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent back surgery with laminectomy and discectomy in February 2007.  During the 11 April 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported trouble sleeping due to back pain.  Physical examination revealed tenderness and decreased range of motion (ROM); however, ratable goniometric measurements were not recorded by the examiner. 

The 19 July 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of increasing back pain.  Physical examination showed a non-antalgic gait and tenderness.  The goniometric ROM evaluation, showed flexion of 45 degrees (normal 90) and combined ROM of 90 degrees (normal 240), after repetition, limited by pain.  There was no further limitations due to fatigue, weakness, lack of endurance or incoordination.  

At the 24 February 2009 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported low back pain.  Physical examination showed a normal gait with no evidence of radiating pain, muscle spasm, tenderness or ankylosis.  The thoracolumbar ROM study showed flexion of 40 degrees and combined ROM of 190 degrees.  The joint function of the spine was additionally limited by pain, weakness and stiffness after repetitive use, but the examiner did not quantify the additional limitation.  The examiner noted the radicular symptoms the CI was complaining of were subjective and there were no physical findings of radiculopathy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5243 (intervertebral disc syndrome), citing limitation of flexion to 45 degrees.  The VA also rated the back condition 20%, coded 5239 (spondylolisthesis or segmental instability), based on the C&P examination, citing limitation of flexion.  

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 all examinations proximate to separation.  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 of 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 20170424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180015189, 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.