RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-04170
BRANCH OF SERVICE:  army	SEPARATION DATE:  20090424

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, UH-60 Helicopter Repairman, medically separated for “intervertebral disc syndrome [IVDS] with chronic low back pain [LBP]” with a disability rating of 10%. 

CI CONTENTION:  “Review for accuracy and fairness.”  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 - 20090129	VARD – 20091123	
Condition	Code	Rating	Condition	Code	Rating	Exam	
IVDS with Chronic LBP	5243	10%	DDD, Lumbar Spine	5237	10%	20090929	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6511	0%	20090929	
Tinnitus with Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20090919	
Heartburn	Not Unfitting	Peptic Disease	7346	0%	20090929	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

IVDS with Chronic LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in April 2003 while deployed, likely due to hard landings in a helicopter.  Initial lumbar X-rays were normal.  He reinjured his back during a fitness test in 2005.  An MRI at that time revealed an L5-S1 disc protrusion that displaced the S1 nerve root.  Despite such radiographic findings, his condition was ultimately determined to be non-surgical and multiple conservative treatment modalities ensued.  
The 6 November 2008 physical therapy (PT) encounter, 6 months prior to separation, measured thoracolumbar range of  motion (ROM) of 80 degrees forward flexion (normal 90) and combined ROM of 190 degrees (normal 240).  Painful motion was globally present.  Local spine tenderness was present without muscle spasm, guarding, abnormal gait, or abnormal spinal contour.

At the 13 November 2008 VA Compensation and Pension (C&P) examination, 5 months prior to separation, the CI reported LBP associated with peripheral tingling that was aggravated by exercise, lifting, prolonged standing, or sitting.  His physical examination (PE) revealed a normal gait.  Absent evidence of spinal-related muscle spasms, there was abnormal lumbosacral spinal contour and tenderness.  Although there was no formal ROM evaluation, the CI could “flex to floor” (90 degrees or more).  There was no measurement for extension, but lateral flexion was 10 degrees (normal 30), bilaterally, and rotation was bilaterally normal.  Painful motion was present.  Radicular symptoms were not reproduced and peripheral motor activity and sensation were normal.  

During the 6 Janaury 2009 MEB NARSUM examination, 4 months prior to separation, the CI complained of constant LBP that worsened with prolonged sitting, standing or lying down.  He also reported tingling and numbness in his legs.  The PE documented decreased, but non-quantified lumbar ROM in flexion and extension.  Bilateral lumbar lateral flexion and rotation were normal.  Local tenderness was present.  Gait was normal and peripheral motor activity and sensation were normal.  

At the 29 September 2009 VA C&P examination, 5 months after separation, the CI reported LBP.  The PE revealed an abnormal gait and tenderness.  After repetition, the ROM examination documented flexion to 75 degrees and combined ROM of 205 degrees without painful motion.  Peripheral motor activity and sensation remained normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (IVDS), citing limitation of forward flexion.  The VA also rated the back condition 10%, coded 5237 (lumbosacral strain), based on the C&P examination citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.

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) or alternatively for combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the pre-separation PT and post-separation C&P examinations.  Additionally, evidence of pre-separation painful motion would also rate no greater than 10% IAW VASRD §4.59.  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 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 back condition.  

Contended PEB Conditions:  Allergic Rhinitis, Tinnitus, Hearing Loss and Heartburn.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement, and they did not fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  
BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended allergic rhinitis, tinnitus, hearing loss, and heartburn, the panel recommends no change from the PEB determinations as not unfitting.  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.  

The following documentary evidence was considered:

	PD-2017-04170

AR20190012053, XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

	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.

	PD-2017-04170