RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04232
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, UH-60 Helicopter Repairer, medically separated for “spinal fusion L2-3” with a disability rating of 20%.  

CI CONTENTION:  He continues to have pain but does not take medication due to fear of addiction.  He is depressed about his pain, and also is deaf to certain tones.  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 - 20090608	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion L2-3	5241	20%	No VA Examination Proximate to Separation in Evidence	
Mood Disorder 	Not Unfitting		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Spinal Fusion L2-3.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with interbody fusion at L2-3 in October 2008.  At the time of his postoperative orthopedic appointment on 13 February 2009, the CI reported some pain and stiffness but he was much improved.  He had no radiation of pain into his legs and no limb weakness or tingling.  The examiner recorded tenderness, paraspinal muscle spasms and painful motion.  

The 7 May 2009 MEB NARSUM examination, 3 months prior to separation, noted complaints of low back pain rated at 3-4/10 at rest, aggravated by lifting, bending or prolonged standing or sitting.  The CI reported back pain flares 5-6 times a day for about one hour.  Physical examination showed tenderness in the upper lumbar paraspinal muscles with mild spasm on the right.  Gait and spinal contour were normal, as was a neurological examination of the lower extremities.  Range of motion (ROM) after repetition showed flexion of 60 degrees (normal 90) and combined ROM of 150 (normal 240).  There was pain with motion.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion), citing limitation of motion.  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 NARSUM 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Condition:  Mood Disorder.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is 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 mood disorder, the panel agrees it cannot recommend it for additional disability rating.  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:

AR20190004324, XXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXX:

	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.