RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03289
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061007

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantry and Cryptologic Linguist, medically separated for “chronic back pain due to spondylolysis, L5, without neurologic or electrodiagnostic abnormality” with a disability rating of 10%.

CI CONTENTION:  He continues to have pain from his back injury.  He also requested review of additional 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 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 - 20060829	VARD - 20070312	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5239	10%	Lumbar Spondylosis	5242	20%	20070110	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began in December 2005 after an airborne jump.  An August 2006 MRI demonstrated a bilateral L5 spondylolysis with grade I L5 anterolisthesis relative to L4 and L5, and mild diffuse disc bulges at L1-2, L2·3, and L3·4.  Surgery was recommended, but the CI declined.  

The 3 August 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of low back pain (LBP) aggravated with prolong sitting and lifting light weights.  Physical examination showed lumbar spinal tenderness and back flexion to 90 degrees (normal) with a combined range of motion (ROM) of 230 degrees (normal 240); painful motion was present.  At a 21 September 2006 orthopedic evaluation, 1 week prior to separation, the CI reported ongoing LBP and requested refills of his pain medication.  Physical examination revealed tenderness around the L5 area, but normal thoracolumbar ROM in all planes. 

At the 10 January 2007 VA Compensation and Pension (C&P) spine examination, 3 months after separation, the CI reported chronic LBP aggravated by daily activities and repetitive use.  Physical examination showed thoracolumbar flexion of 45 degrees and a combined ROM of 195 degrees; painful motion was present.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5239 (segmental instability), citing painful motion and tenderness.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion.  Members placed greater probative value on the NARSUM and orthopedic examinations, which were more proximate to the date of separation, and thus more reflective of the CI’s status at that time.  The panel agreed there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  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 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 chronic back pain 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 20170406, w/atchs	
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180012280, 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.

Sincerely,					      

Enclosure