RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-04141
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E8, Transportation Senior NCO, medically separated for “chronic back pain” with a disability rating of 0%.  

CI CONTENTION:  He was given a higher rating by the VA for the back condition.  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’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 - 20070126	VARD - 20080114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	0%	Degenerative Disc Disease Lumbar Spine	5243	20%	20071101	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in 1984 but worsened in June 2004 after lifting heavy sandbags.  X-rays in May 2006 were normal, but an MRI in July 2006 showed degenerative disk disease with stenosis; however, the CI was not a surgical candidate.  The 21 August 2006 physical therapy (PT) range of motion (ROM) evaluation, 6 months prior to separation, showed flexion of 130 degrees (normal 90) and combined ROM of 230 degrees (normal 240).  Painful motion was reported.  

The 30 October 2006 MEB NARSUM, 4 months prior to separation, noted complaints of chronic low back pain.  Physical examination, cited as having been performed on 8 August 2006, reported the same precise ROM measurements and painful motion as the 21 August 2006 PT evaluation above.  There was no evidence of atrophy or extremity weakness.  

At the 1 November 2006 VA Compensation and Pension (C&P) examination, 4 months before separation, the CI reported low back pain with stiffness, weakness and exacerbations with activity.  Physical examination showed tenderness and spasm, but the CI had a normal gait and there was no evidence of an abnormal spinal contour.  Goniometric ROM testing showed flexion of 60 degrees and combined ROM of 145 degrees, with a further 5 degrees decrease following repetition.  Lumbosacral X-rays from 30 May 2007 were recorded as showing minimal spondylosis at L5. 

At the 26 July 2007 VA treatment report, 5 months after separation, the CI reported continued back pain.  Examination showed the CI walked with a cane and the back was tender.  At the 18 November 2007 VA emergency department visit, 9 months after separation, the physical examination showed the back with markedly limited ROM and tenderness.  The 1 November 2007 VA C&P examination, 9 months after separation, the CI reported increased back pain.  The back examination showed full ROM without additional abnormal findings.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded as 5242 (degenerative arthritis of the spine), citing combined thoracolumbar ROM “greater than 240 degrees.”  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel noted the limitation of thoracolumbar motion recorded in the MEB NARSUM examination met the threshold for a 10% rating.  The NARSUM ROMs and PT ROMs were identical and almost certainly from the same evaluation 6 months prior to separation.  The PEB’s interpretation of a combined ROM greater than 240 degrees was not IAW VASRD spine rules (note 2 and 4 for truncating and rounding measurements), and the combined ROM was 230 degrees and documented painful motion would also have warranted a 10% rating.  However, the VA pre-separation examination was closer to separation, more detailed, and reported ROM performed after repetition.  Therefore the panel placed greater probative value on the VA examination.  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 VA examination.  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 20% for the back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 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	5242	20%	

The following documentary evidence was considered:

AR20190004435, XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

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 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.