RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03817
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20051228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantryman, medically separated for “chronic low back pain” with a disability rating of 0%. 

CI CONTENTION:  The condition continues to worsen and negatively affects daily activities.  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 PEB, but determined 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.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to 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, operating 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 the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20051104	VARD - 20060106	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	0%	Degenerative Disc Disease Lumbar Spine	5243	10%	20050909	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in December 2004 when he suffered a torsional injury while wearing a heavy rucksack.  Radiographic studies in January 2005 showed degenerative changes and studies done in June 2005 showed scoliosis with loss of normal lumbar lordosis.  Evaluation by orthopedics in July 2005 concluded with diagnoses of intervertebral disc degeneration and herniated intervertebral disc.  Surgery was not recommended.  

During the 29 August 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported “numbness and tingling pain in the back.”  The physical examination referred to the “VA dictation.” The 21 September 2005 MEB NARSUM noted complaints of worsening back pain without radicular symptoms and no loss of bowel or bladder function.  His back pain was aggravated by “running, jumping, marching, strenuous activity and climbing stairs.”  The NARSUM author referred to an MRI that showed disc protrusions at L4-5 impacting the thecal sac and S1 nerve roots.  Physical examination conducted on 7 September 2005, 4 months prior to separation, showed normal posture and gait without tenderness.  Motor strength, reflexes and sensation were normal and provocative testing to elicit nerve root involvement was negative.  Muscle spasm was not addressed.

At the 7 September 2005 VA Compensation and Pension (C&P) examination, 4 months before separation, the CI reported chronic back pain precipitated by “exercise, running, walking, significant weight on back and climbing stairs.”  Physical examination showed normal gait, full range of motion (ROM) of all joints and no pain, weakness, fatigue or incoordination following repetitive motion.  There was no tenderness noted and muscle spasm was not addressed.  The examiner stated, “Although the [CI] did complain of [pain], there [was] no change in ROM with repetition.  Therefore [the examiner] would need to resort to speculation in order to assess any loss of function due to this pain.”  Motor strength, sensation and reflexes were normal.  The 19 October 2005 physical therapy ROM evaluation, 2 months prior to separation, showed flexion of 70 degrees (normal 90) and combined thoracolumbar ROM of 210 degrees (normal 240) with pain in all planes of motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5243 (intervertebral disc syndrome), citing “no neurologic deficit; no tenderness or spasm; ROM limited by pain.”  The VA rated the back condition 10%, coded 5243 based on the C&P examination 4 months before separation, citing “evidence of degenerative process with clinical findings of limited and painful motion.”

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/or combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the physical therapy ROM 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.  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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5243.  

Contended PEB Condition:  Scoliosis.  Panel members agreed that this condition was part and parcel of the CI’s unfitting back condition and that any disability associated with this condition was included in the rating for the back.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	10%	

The following documentary evidence was considered:

AR20180015545, 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.