RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03327
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20050607

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Combat Engineer, medically separated for “chronic low back pain” with a disability rating of 20%.

CI CONTENTION:  “My back is still a problem which doesn’t reflect my percentage.”  The CI also contends that he was denied rating for nose/breathing problems, PTSD, hearing, right shoulder condition, and right and left foot/ankle conditions, all of which, he claims, were present at the time of his 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 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 - 20050429	VARD - 20060215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	20%	Lumbosacral Strain	5293-5237	20%	20050720	
Recurrent Shoulder Strain	Not Unfitting	Residuals, Right Should Sprain 	5010	NSC	20050720	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent a discectomy at L5-S1 on 8 October 2004.  Post-operative X-rays showed moderate narrowing of the L5-S1 space with no abnormal postoperative findings.  

During the 20 January 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported a history of numbness and tingling that was better since surgery, but still had residual pain.  The physical examination was negative except for a decrease in the right ankle jerk reflex. 

The 5 April 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of intermittent pain in the right buttock that radiated to the thigh.  His condition was aggravated by standing more than 45 minutes, repeated bending, heavy lifting, impact activities and running.  Physical examination showed no tenderness, spasm or visible spinal deformity.  Range of motion (ROM) testing, after repetition, showed forward flexion of 55 degrees (normal 90) and combined thoracolumbar ROM of 190 degrees (normal 240).  The examiner noted pain in all planes of motion that was not limiting.  Provocative testing to detect nerve root irritation was negative.  Motor strength, reflexes and sensation were normal.

At the 20 July 2005 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported constant 3-4/10 low back pain that radiated down the right leg.  His back pain was elicited by physical activity, especially standing and walking.  His pain affected his ability to bend, twist, sit or stand for long periods of time, run or jump.  Physical examination showed normal posture and gait and no spinal tenderness.  ROM testing showed flexion of 50 degrees and combined thoracolumbar ROM of 170 degrees.  The examiner noted that joint function was additionally limited by pain after repetitive use, but did not provide the amount of additional limitation.  Provocative testing to detect nerve root irritation was positive on the right at 50 degrees, but the examiner noted no intervertebral disc syndrome (IVDS).

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5243 (IVDS), citing flexion limited to 55 degrees.  The VA also rated the back condition 20%, coded 5293-5237, (IVDS due to lumbosacral strain), based on the C&P examination 2 months after separation, citing forward flexion greater than 30 degrees, but not greater than 60 degrees.  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 the NARSUM and VA examinations proximate to separation.  There was no evidence of ankylosis or limitation of flexion less than 30 degrees or other coding option to support a higher rating than the PEB’s adjudication.  There was no documentation of IVDS 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.  

Contended PEB Condition:  Right Shoulder Condition.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right shoulder condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends there be 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 20170509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008923, 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