RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE: PD-2017-04290 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20071227

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Heavy Construction Equipment Operator, medically separated for “lumbar degenerative disc disease [DDD]” with a disability rating of 0%.

CI CONTENTION: The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20071107	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD	5299-5242	0%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: NA	
	
ANALYSIS SUMMARY:

Lumbar DDD. According to the service treatment record and MEB narrative summary (NARSUM), the CI sustained a low back strain in 2002 and an exacerbation of back pain after falling off a truck in 2003. Spinal X-rays performed in November 2004 were unremarkable. Follow-up radiological studies revealed degenerative disc as well as bony facet degeneration. Persistent conservative treatment modalities did not provide long term pain relief and orthopedics determined that the CI’s condition was not amendable for surgery. At a physical therapy (PT) encounter on 7 June 2007, 6 months prior to separation, the CI reported low back pain that was aggravated by sitting, prolonged  standing,  being  active,  and  wearing  battle  gear.    The  physical  examination (PE)

revealed an antalgic gait. Thoracolumbar range of motion (ROM) measurements recorded active flexion to 40 degrees (normal 90), extension 20 degrees (normal 30), right and left lateral flexion to 25 degrees, respectively (normal 30). Painful motion was present. A follow-up PT encounter on 15 August 2007, 4 months prior to separation, revealed thoracolumbar ROM of flexion to 55 degrees and a combined ROM of 190 degrees (normal 240) after repetition.

The 9 October 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant low back pain that “…was tolerable if he was inactive.” Activity exacerbated the pain. The PE noted a normal gait and no evidence of spinal tenderness, surrounding muscle spasms, or guarding. The provider referenced the ROM measurements taken on 15 August 2007 and that [spinal] ROM was consistent with goniometer measurements. 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 low back condition 0%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing no tenderness, spasm or guarding, and a normal gait. The panel agreed that a 20% impairment rating, but no higher, was justified for limitation of spinal flexion (greater than 30 degrees but not greater than 60 degrees) as reported on all above referenced examinations. Therefore, 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 low back condition, coded 5299-5242.

Contended PEB Condition: Insomnia. 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 or implicated in the commander’s statement, and did not 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 low back condition, the panel recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a. In the matter of the contended insomnia condition, 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.

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbar Degenerative Disc Disease	5299-5242	20%	

The following documentary evidence was considered:

PD-2017-04290
AR20190012181, XXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXX

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 (copy enclosed) 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.