RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-04326
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Operations Specialist, medically separated for “low back pain” with a disability rating of 0%.

CI CONTENTION:  “DDD lumbar spine has worsened since time of rating and was unjustly rate at time of separation.”  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 - 20060530	VARD - 20061124	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	0%	Degenerative Dis Disease Lumbar Spine	5243	20%	20060628	
Diabetes	Not Unfitting	Diabetes Mellitus, Type II	7913	20%	20060628	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in in August 2005 subsequent to daily.  Radiographic studies showed degenerative disc disease (DDD) at L5-S1 and mild stenosis at L4-5 and L5-S1.  During the 31 March 2006 MEB NARSUM examination, 5 months prior to separation, the CI reported low back pain with flares 3-4 days a week.  Physical examination showed no pain with flexion, extension, rotation or side bending, but range of motion (ROM) measurements were not provided.  Straight leg raise testing was negative.  The 11 April 2006 MEB physical therapy ROM evaluation, 5 months prior to separation, showed active lumbar flexion of 25 degrees (normal 90) and combined ROM of 100 degrees (normal 240) after repetition; painful motion was present.

At the 28 June 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported back pain, stiffness, weakness and muscle spasms.  Pain occurred three times per day and was elicited by activity or stress.  Physical examination showed a normal gait and spinal contour with tenderness, but no muscle spasm.  Thoracolumbar ROM was active flexion of 45 degrees and combined ROM of 195 degrees; painful motion was present.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (lumbosacral strain), citing no tenderness or spasm, a combined passive ROM equal to 190 degrees, and a normal examination.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination, citing flexion limited to 45 degrees with pain.  

In assigning probative value to these conflicting examinations, the panel noted that the NARSUM examination did not specify any measured ROMs or even “full” ROM, but noted only painless ROM.  The panel noted that the pre-separation VA examination was closest to separation and measurements were consistent with the other proximate (pre-separation) examinations.  The MEB physical therapy ROM examination was considered an outlier as the single evaluation documenting limited ROMs approximating the 40% rating criteria.  Therefore, based on the VA examination being closer to separation, more detailed, comprehensive and best aligned with the remainder of the STR, the panel agreed that preponderant probative value should be assigned to the pre-separation 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 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 recommends a disability rating of 20% for the back condition, coded 5237.

Contended PEB Condition:  Diabetes, Type II.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The MEB NARSUM noted the diabetes condition was being treated with oral medications (Metformin) with average daily sugar in the mid 140’s (normal below 110) and her HgA1C levels were very good (5.9).  The MEB indicated the condition did not meet retention standards, but there were no specific limitations attributed to the condition and it was not profiled.  The diabetes condition was mentioned as a diagnosis requiring oral medication in the commander’s statement without any specific duty limitations.  There was no indication of ketoacidosis, hypoglycemic episodes, diabetic complications, requirement for insulin or special duty restrictions based on use of oral medication.  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, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended diabetes condition, the panel recommends no change from the PEB determination as not unfitting.  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	
Low Back Pain	5237	20%	

The following documentary evidence was considered:

AR20190004376, 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 (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.