RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-04022
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060424

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Chemical Operations Specialist, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION: Review requested review of the unfitting back condition as well as an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was requested.  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 - 20060303	VARD - 20070727	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Degenerative Joint and Disc Disease Status Post L5-S1 Fusion and Laminectomy	5243	10%	20070209	
0COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Chronic Back Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI was treated conservatively for low back pain from 2001 to 2004 before an L5- S1 posterior laminectomy and interbody fusion surgery was performed in May 2005. The back pain decreased, but he was unable to perform the required duties of his military specialty. At the physical therapy (PT) examination on 20 December 2005, 4 months prior to separation, “trunk” flexion was 55 degrees (normal 90) and combined range of motion (ROM) was 170 degrees (normal 240).

The 5 February 2006 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of chronic low back pain. Goniometrically measured thoracolumbar spine flexion was to 60 degrees and combined ROM was not quantified. Painful motion was not addressed. During the 26 February 2006 MEB NARSUM addendum, the examiner recorded normal neurologic and lower extremity findings. Thoracolumbar spine flexion was to 55 degrees and combined ROM was 170 degrees.  Painful motion was not addressed.

At the 9 February 2007 VA Compensation and Pension (C&P) examination, 10 months after separation, physical examination revealed a normal gait and spinal curvature. Thoracolumbar spine flexion was to 70 degrees and combined ROM was incomplete (but greater than 155 degrees).  There was no further ROM loss following repetitive motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain with localized tenderness, and with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion. The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination, citing limitation of flexion. 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 PT and MEB examinations most proximate to separation. There was no evidence of IVDS with incapacitating episodes to support 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 20% for the back condition, coded 5241.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20% coded 5241 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 Back Pain	5241	20%	

PD-2017-04022

AR20190011648, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXX

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.

PD-2017-04022