RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03445
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050417

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Armor Crewman, medically separated for “chronic low back pain” with a disability rating of 0%.  

CI CONTENTION:  “Left knee, hearing loss, chronic back pain, PTSD.”  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 - 20050328	VARD - 20060313	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Degenerative Disc Disease, Lumbar Spine	5242	20%	20060806	
Mild Sensorineural Hearing Loss, Bilateral	Not Unfitting	Hearing Loss, Bilateral	6100	0%	20060215	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in January 2004 after hitting his lower back on an edge of manhole type exit in the floor during an exercise.  Additionally, while deployed he was a gunner in the turret and when the vehicle hit a bump, he “went airborne” with all his equipment on and felt his spine “compressed like a slinky.”  In July 2004, the CI reported the back pain radiated to the left buttock to the posterior thigh with general numbness of the left leg.  Serial X-rays of the lumbosacral spine were normal, while an MRI revealed a transitional lumbar vertebra referred to as L6 with degenerative disk disease and broad based bulges at L4-L5, L5-L6 and L6-S1 levels with mild to moderate facet degenerative changes at the L6-S1 level.  

The CI was evaluated by an orthopedic surgeon on 13 August 2004, who noted tenderness from L3 to the sacrum, the left sacroiliac joint and the left paraspinal muscles.  Flexion was fingers to knees and the CI had an antalgic gait.  The examiner’s assessment was mechanical low back pain and the CI was referred to physical therapy.  An MRI dated 17 August 2004 demonstrated an osteophyte/disc complex at the L5-S1 disc space level causing bilateral mild to moderate symmetric foraminal encroachment without evidence of central canal stenosis.  A bone scan on 27 October 2004, ordered to rule out an L5 pars fracture, was normal.  

During the 10 December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported intermittent numbness in the left leg.  Physical examination revealed diffuse tenderness.  Straight leg raising (to determine nerve root irritation) was negative, and there was no sciatic notch tenderness.   Deep tendon reflexes were 2+ bilaterally, and he was able to heel, toe, and duck walk without a problem.  

The 22 December 2004 MEB NARSUM examination, 5 months prior to separation, noted no bowel or bladder symptoms and his back pain and symptoms were refractory to treatment.  Physical examination findings were the same as those of the 10 December 2004 MEB examination (see above).  Physical therapy range of motion (ROM) measurements on 6 January 2005, 3 months before separation, were flexion of 70 degrees (normal 90) and combined ROM of 190 degrees (normal 240). 

At the 15 February 2006 VA Compensation and Pension (C&P) evaluation, 10 months after separation, the CI reported moderate, constant aching of the back and radiation of pain to the left leg laterally down to the knee level with numbness and tingling of the left thigh and weakness of the left upper leg.  There was no bowel or bladder incontinence.  He did not use any assistive device.  Physical examination showed normal lumbar spine curvature, but he was moderately tender in the lumbar paraspinous muscles without spasm.  Forward flexion was 50 degrees with pain at 50 degrees and combined ROM was 170 degrees with pain at end ROM.  With repetition there was no loss of motion secondary to pain, weakness or lack of endurance.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (lumbosacral strain), citing combined passive ROMs equal to 220 degrees.  The VA rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of forward flexion.  

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 and greater than 120 degrees but not greater than 235 degrees as reported on the physical therapy examination proximate to separation.  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.  Members noted the VA assigned a 20% rating based on forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; however, that examination had lower probative value since it was 10 months after separation as compared to the physical therapy examination 3 months prior to separation.  Furthermore, the STR and VA examination were silent as to whether there was any accident, injury or surgery that could account for the diminished ROMs found at the VA examination.  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 recommends a disability rating of 10% for the back pain condition, coded 5242.  

Contended PEB Condition:  Hearing Loss, Bilateral.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was profiled H3 with limitations of no duty or assignment to noise in excess of 85 dB or weapon firing without proper ear protection.  There was a recommendation of “re-assignment to or retention in non-noise hazardous MOS.”  The hearing loss in both ears was mentioned as a diagnosis in the commander’s statement and was judged to fail retention standards.  At an audiology evaluation on 14 April 2005, the average hearing loss on the left was 56.25 dB and on the right 67.5 dB.  Speech recognition was 88% at 90 dB on the right and 92% at 80 dB on the left.  The examiner’s assessment was bilateral, moderate, service related and noise induced sensorineural hearing loss.  At the 15 February 2006 VA C&P audiology evaluation the average hearing loss was 46.25 dB on the left and 46.25 dB on the right and speech recognition was 88% on the left and 94% on the right.  The examiner’s assessment was bilateral sensorineural hearing loss normal to moderate.  

The performance-based evidence from the record showed that the condition significantly interfered with continued satisfactory duty performance at separation.  After due deliberation, the panel agreed the preponderance of evidence with regard to the functional impairment of bilateral hearing loss favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6100 and meets the VASRD §4.85 and §4.86 criteria for a 10% rating.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended hearing loss, the panel agrees it was unfitting and recommends a disability rating of 10%, coded 6100 IAW VASRD §4.85 and §4.86.  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	5242	10%	
Hearing Loss, Bilateral	6100	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150510, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010954, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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. 

Sincerely,					      
Enclosure