RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-03433
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Military Policeman, medically separated for “low back pain (LBP)” with a disability rating of 0%.  

CI CONTENTION:  “Condition is degenerative.”  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 - 20060919	VARD - 20070327 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5299-5243	0%	Herniation of Nucleus Pulposus with Chronic LBP Status Post Lumbar Laminectomy…	5299-5243	0%	20061207	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 2004 after he tripped and fell squarely on his back.  He gradually developed some pain.  Initial X-rays showed degenerative changes several weeks after his injury.  An MRI dated 13 October 2005 showed broad-based, moderate-sized central disk herniation at L4-5 and L5-S1, causing mild to moderate central canal stenosis.  The decision was made to send him for micro-discectomy surgery at L4-5 and L5-S1 bilaterally in 2006.  After surgery, his profile was permanently changed to P3.  
The 12 July 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of LBP.  Physical examination showed a well-healed scar in his lower back.  He had negative bilateral lower extremity straight leg raise.  Upper and lower extremity strength was normal.  A plain lumbar series X-ray dated 24 April 2006 showed the lumbar spine discectomy was stable.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 21 July 2006, 3 months prior to separation, showed flexion of 65 degrees (normal 90) and combined ROM of 215 degrees (normal 240) after repetition.  Gait was normal.  At the 15 September 2006 PT examination, one month prior to separation showed no tenderness of the paraspinal muscles of the cervical, thoracic or lumbar spine.  ROM taken with a goniometer showed flexion of 75 degrees and combined ROM was normal.  

At the 7 December 2006 VA Compensation and Pension (C&P) general examination, 2 months after separation, the physical examination showed no radicular symptoms.  ROM of the back was deferred post-surgery.  The CI reported LBP with flare-ups every 2-3 weeks during the 9 October 2007 VA C&P spine examination 12 months after separation.  Physical examination showed noticeable guarding in his gait.  Motor, sensory, and reflex examinations were all normal and there was no ankylosis.  Thoracolumbar ROM was flexion 75 degrees and combined ROM at 205 degrees with pain and loss of motion with repetition. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the back condition 0%, analogously coded 5299-5243 (intervertebral disc syndrome [IVDS]).  The PEB cited ROM limited to 80 degrees by pain and no mechanical block.  The VA based the rating on the C&P examination, citing deferred ROM tests of the lumbar spine.  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) as reported on all examinations.  In considering a higher rating, it was noted that guarding associated with an abnormal gait was present on the VA spine examination, but spine curvature and posture were normal.  The panel concluded that this was not a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  There was no documentation of IVDS 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 recommends a disability rating of 10% for the back condition, coded 5299-5243. 

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5299-5243 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	5299-5243	10%	

The following documentary evidence was considered:

AR20190010664, XXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

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.