RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04342
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Ground Surveillance Systems Operator, medically separated for “chronic back pain” with a disability rating of 10%.   

CI CONTENTION:  “Initial rating by VA was 70%.  Army only evaluated my back which was upped by VA & additional disabilities.”  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 - 20060120	VARD - 20061023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Thoracic Disc Degeneration 	5243	10%	20060728	
Right Knee Retropatellar Pain Syndrome	Not Unfitting	Retropatellar Pain Syndrome, Right Knee	5260	10%	20060728	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began insidiously in July 2005 without specific injury or trauma.  Radiographic studies revealed mild to moderate L5-S1 disc protrusion.  The 15 November 2005 MEB NARSUM orthopedic examination, 6 months prior to separation, noted complaints of constant bilateral mid back pain, made worse with sitting, driving, standing, and walking.  His physical examination (PE) noted a shuffling gait.  His standing posture was rigid and his sitting posture appeared uncomfortable.  Spinal range of motion (ROM) measurements were documented as “flexion deteriorated by 80 degrees and extension decreased 10 degrees.”  

Both the 28 December 2005 MEB NARSUM examination and MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, noted complaints of daily and constant back pain even when performing daily activities.  His PE revealed a normal walk.  There was increased thoracic spine kyphosis as noted and described as an obvious gibbous (hunch-back) deformity.  Spinal tenderness was present.  Thoracolumbar ROM measurements noted normal forward flexion and combined ROM was 235 degrees (normal 240).  

At the 28 July 2006 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported continued daily back pain.  He reported no flare-ups, but stated the pain increased about 3 to 4 times a week without apparent cause.  The CI also reported the pain radiated down the left lower extremity to the ankle with numbness and tingling.  His PE revealed spinal tenderness without surrounding spasms.  Peripheral sensation was normal.  Thoracolumbar ROM measurements indicated forward flexion to 75 degrees (normal 90) and combined ROM of 225 (normal 240) degrees after repetition with some complaints of pain at terminal range.  There was no ROM change upon repetitive movement.  The examiner stated the functional impairment of the back condition was slight with no weakness, fatigability or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, analogously coded as 5237 (lumbar spine strain) citing paraspinal muscle tension.  The VA also rated the back condition at 10%, coded 5243 (intervertebral disc syndrome), based upon the C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than: 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The panel deliberated over the pre-separation orthopedic examination as to the provider’s meaning behind the statement regarding “flexion deteriorated by 80 degrees.”  Members considered the two possible interpretations of such a statement would be either the true flexion being at 10 degrees (normal of 90 degrees being deteriorated by 80 degrees = 10 degrees) or such documentation was an error and was meant to indicate flexion to 80 degrees.  Panel members concluded that the former interpretation of a true 10 degree flexion value was not consistent or even possible given that the CI had the ability to maintain a sitting position as well as the ability to drive a motor vehicle; both of which would not have been feasible if the CI could only forward flex to 10 degrees.  Therefore, members agreed that the latter interpretation of forward flexion to 80 degrees was most applicable given the history as stated above.  

Panel members further agreed that a 10% rating, but no higher, was justified for the presence of spinal tenderness as reported on the MEB examination proximate to separation.  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.  After due deliberation, considering all of 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: Right Knee Retropatellar Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that right knee condition was not unfitting.  The condition was profiled and implicated in the commander’s statement, but it was not judged to fail retention standards.  The STR noted that the CI first developed right knee pain while in basic training in 1994 and received surgery to that knee in 1997.  The case file remained void of clinical encounters with regard to the condition from early 1999 through mid-2005.  On 14 June 2005, 11 months prior to separation, the knee ROM was listed as “active full range of motion.”  Knee cap laxity was present.  A primary care encounter dated 6 July 2005, 10 months prior to separation, showed right knee ROM of 0-135 degrees (normal 0-140).  A follow-up visit 6 weeks later revealed a “stable” right knee without laxity.  At the 28 July 2006 VA C&P examination, 3 months after separation, his PE revealed tenderness about the right knee with “trace to 1+ laxity.”  ROM revealed normal extension and flexion was decreased to 105 degrees.  Painful motion was not present.     

Panel members first deliberated if the right knee condition was unfitting.  During the 11 months prior to separation, examinations in evidence revealed a nearly normal right knee and during the interim 14 months until the C&P evaluation the STR was void of any further injury or adverse pathology that would result in worsening physical parameters.  There was no performance-based evidence from the record that the right knee condition significantly interfered with satisfactory duty performance at or near separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for the contended right knee condition and 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 right knee 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.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170327, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180006281, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX  

Dear XXXXXXXXXXXXXXXXXX:

	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.

Sincerely,	  				      
Enclosure