RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-04389
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070221

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Heavy Construction Equipment Operator, medically separated for “low back pain” with a disability rating of 10%.

CI CONTENTION: Review requested of hearing, low back and 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 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 - 20061215	VARD - 20070711	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Secondary to Multilevel Degenerative Disease	5243	10%	Osteoarthritis Thoracolumbar Spine	5242	10%	20070309	
Left Ear High Frequency Sensory Neural Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20070309	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Low Back Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in 2002 after lifting heavy asphalt. He developed  a sudden onset of severe low back pain with radiation into both legs, at times worse on the right as compared to the left. A lumber spine MRI on 18 July 2006, 7 months prior to separation, revealed a small left para-median disc protrusion at L5-S1 abutting the left S1 nerve root, but no nerve root displacement or compression was identified. At a physical medicine appointment the same day, the CI reported low back pain rated at 4-9/10 level depending on what he did. The provider noted lumbosacral muscle spasms and positive straight leg raise testing, but normal lower extremity motor strength and reflexes.

The 1 August 2006 MEB NARSUM examination, 7 months prior to separation, noted complaints of severe low back pain (rated at 5-9/10) with radiation into his legs and worsened by lifting,

bending and wearing Kevlar or body armor. Physical examination showed a normal gait and no neurologic deficits. Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 14 August 2006 showed flexion of 80 degrees (normal 90) and combined ROM of 185 degrees (normal 240) after repetition. Painful motion during extension was significantly greater than pain with flexion.

At the 9 March 2007 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported pain (rated at 9/10) and stiffness in the lower and upper back which made it difficult to move and caused weakness. Physical examination showed paraspinal muscle spasm, tenderness, and radiation of pain on movement. Upper and lower extremity sensory function was normal. Thoracolumbar ROM showed flexion of 80 degrees and combined ROM of 230 degrees. After repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination, and no additional ROM limitation.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), citing muscle spasm with no altered gait or scoliosis, and flexion limited to 80 degrees by pain alone. The VA also rated the low back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing thoracolumbar forward flexion greater than 60 degrees but not greater than 85 degrees; and, combined ROM greater than 120 degrees but not greater than 235 degrees. Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion, as reported on the MEB PT and VA examinations proximate to separation. Although there was muscle spasm present at the VA examination, it was not 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 low back condition.

Contended PEB Condition: Left Ear High Frequency Sensory Neural Hearing Loss. 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 and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended hearing loss, 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:

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY

SAMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-DO)

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXX, AR20200000346 (PD-2017-04389)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,	I accept the Board’s recommendation and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY: