RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-03121
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard, , medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  In addition to the back condition, the CI requested other conditions 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 - 20070613	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain 	5299-5237	0%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI first injured his back after a fall during a Guard drill in 1996.  He suffered persistent low back pain after that, but did not seek military care.  He saw a civilian physician in 2004 and an MRI at that time demonstrated disc disease (annular tear with protrusion at L5/S1, no neural impingement).  There were no provider entries in the STR probative to separation that provided any evidence regarding range of motion (ROM) or other VASRD rating criteria.

The 2 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant low back pain rated 6-7/10 that prohibited running, load-bearing, heavy lifting and multiple general soldiering requirements.  The physical examination recorded tenderness without spasm, a normal gait without note of abnormal spinal contour and normal neurological findings.  Measured ROM (goniometer) was flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal), specifying the absence of painful motion in each plane.  The first VA examination after separation was over two years later and thus not probative to the panel’s recommendation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5299-5237 (analogous to lumbosacral strain), citing normal ROM.  Panel members agreed there was no ROM limitation that would justify a minimum 10% rating.  However, localized tenderness was documented in the NARSUM and is a VASRD §4.71a spine criterion for a 10% rating.  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 back condition coded 5299-5237.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  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	5299-5237	10%	

The following documentary evidence was considered:  

[AR NUMBER], XXXXXXXXXXXXXXXXXX 

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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. 

Enclosure