RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04045
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050528

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve W2, Rotary Wing Aviator, medically for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “The rating was “pushed through” at 10%.  I felt/feel my condition was not given the proper attention.”  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 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 - 20050217	VARD - 20051031	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease of Lumbar Spine	5243	10%	20050813	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI initially experience LBP in 1994 while in the Marine Corps.  He recovered sufficiently, and had only intermittent episodes of LBP of short duration until June 2002, when he experienced an exacerbation after strenuous physical activity.  Spine X-rays showed thoracolumbar degenerative disc changes, and an MRI in June 2004 noted degenerative disease at L3-L4 with light impression on the dural sac.  Surgery was not indicated. 

The 28 December 2004 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of pain “100 percent of the time” during waking hours.  He required at least four Percocet (narcotic) daily for 6 months to control the pain, and reported disturbed sleep and functional activity secondary to pain.    The examiner noted a normal gait, but that the CI sat and rose with some difficulty.  Tenderness and muscle spasm was present, and range of motion (ROM) measurements indicated he could bend forward to approximately 80 degrees (normal 90) with fingertips to within 30 cm of the floor (approximates 70‐80 degrees).  To arise from this position, he had to “walk up the legs.”  During the 3 February 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months before separation, physical examination revealed an antalgic gait and tenderness, as well as a positive FABER’s test (leg motion causing pain).  

At the 13 August 2005 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported chronic LBP.  Physical examination showed no tenderness, and measured ROM revealed flexion of 90 degrees, with pain beginning at 80 degrees, and a combined ROM of 240 degrees (normal).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbar spine strain), citing flexion to 80 degrees, muscle spasm, and 5/5 lower extremity strength.  The VA also rated the low back condition 10%,  but coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination, citing the 10% criteria under the General Rating Formula for Diseases and Injuries of the Spine.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the NARSUM examination.  The panel also agreed a 10% rating was equally justified for the presence of painful motion on the VA examination and for tenderness on the MEB examination, but provided no benefit to the CI.  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 low back condition.  

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.  

AR20200000639, XXXXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXXX:

	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.

	A copy of this decision has been provided to the counsel you listed on your application