RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX 	CASE:  PD-2017-03767
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Police, medically separated for “low back pain” with a disability rating of 10%.   

CI CONTENTION:  The CI 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 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 - 20071129	VARD - 20080724	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5242	10%	Residuals Herniated Disc L4-5 	5243	20%	20080626	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in November 2006 while wearing body armor during deployment to Iraq. Radiographic imaging from March 2007 revealed disc-protrusion at L4-5.  There was no surgical indication.  The 19 November 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of constant tolerable pain unless exacerbated by activity.  The CI reported sleep disturbance due to pain.  Physical examination showed tenderness and spasm.  The gait was normal.  Range of motion (ROM) measurements were flexion of 70 degrees (normal 90) and combined ROM of 205 degrees (normal 240) after three repetitions.  

At the 26 June 2008 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported decreased motion, stiffness and pain in the lower back.   Physical examination showed ROM of the lumbar spine was 55 degrees of flexion and combined ROM of 205 degrees.  The gait was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, analogously coded as 5242 (degenerative arthritis of the spine), citing forward flexion 90 degrees and combined ROM greater than 235 degrees.  The VA rated the LBP 20%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel noted the difference in ROM values reported by the VA examination (5 months after separation) and the MEB NARSUM examination (2 months before separation).  The panel placed higher probative value on the STR and NARSUM examination based on proximity to separation 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 combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB NARSUM examination.  Although there was muscle spasm, it was not 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 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the LBP.  

BOARD FINDINGS:  In the matter of the low back condition 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:

	PD-2017-03767

AR20190011824, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXX

	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.

	

	PD-2017-03767