RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04026
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Petroleum Supply Specialist, medically separated for “lumbosacral strain diagnosed as symptomatic levoscoliosis without radiculopathy” with a disability rating of 10%.  

CI CONTENTION:  “It was not my fault that I had medical issues that caused me to be unfit which prevent me from retiring.”  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 to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the Medical Evaluation Board, 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 - 20081210	VARD - 20091016	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain…	5299-5237	10%	Thoracolumbar Spine Scoliosis	5237	10%	20090505	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 2005.  The CI denied trauma, but first noticed LBP after giving birth.  During the 9 September 2008 orthopedic clinic evaluation, 6 months prior to separation, the CI reported recurrent LBP.  Physical examination revealed a normal gait and stance.  The lumbosacral spine exhibited asymmetry and pain elicited by flexion along with mild tenderness but no palpable muscle spasm.  Neurological examination was intact to include normal strength and sensation.  Thoracolumbar active range of motion (ROM) measurements showed flexion of 90 degrees (normal) and combined ROM of 240 degrees (normal).  

The 11 September 2008 MEB NARSUM examination, 6 months prior to separation, noted complaints of chronic LBP with pain rated 4/10 with recurrent physical activity.  She denied any back or lower extremity pain, numbness or tingling when coughing, sneezing or during bowel movements.  Physical examination showed a rightward thoracic curve and a leftward lumbar curve with prominence of the right scapula and left lumbar paraspinous muscles.  There was no significant tenderness over the thoracic or lumbar region.  She had full active ROM of her back and upper and lower extremities without any palpable spasm.  Neurovascular examination was intact to include normal strength.  The straight leg raise test was negative, bilaterally.  The examiner impression was symptomatic idiopathic levoscoliosis without radiculopathy.  

At the 5 May 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported LBP with stiffness.  The examiner reported lumbar tenderness but no muscle spasm.  Posture and a neurologic examination were within normal limits.  Thoracolumbar active ROM measurements showed normal flexion and combined ROM with pain. The X-rays demonstrated S-shaped scoliosis and no intervertebral disc syndrome was reported.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral or cervical strain), citing tenderness, and, IAW VASRD §§4.10, 4.40, 4.45 and 4.59, the rating includes consideration of functional loss due to factors such as pain in repeated use and painful motion, fatigability, incoordination, weakness with repetitive use, and flare-ups.  The VA rated the back condition 10%, also coded 5237, based on the C&P examination, citing muscle spasm, guarding or localized tenderness not severe enough to result in an abnormal gait or spinal contour.  There was no limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine, however the orthopedic, MEB and VA examinations noted the presence of localized tenderness without an altered gait or spinal contour or presence of vertebral body fracture with loss of 50 percent or more of height.  A 10% rating was therefore warranted.  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.  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 back condition.  

BOARD FINDINGS:  In the matter of the 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.  

AR20180015905  XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX 

	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.