RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04405
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070724

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O3, Infantry Officer, medically separated for “chronic back pain with L4-5 HNP [herniated nucleus pulposus], without neurologic abnormality” with a disability rating of 0%.  

CI CONTENTION:  No specific contention was made.  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 - 20070612	VARD - 20071204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with L4-5 HNP, Without Neurologic Abnormality	5243	0%	Lumbar Strain with History of Degenerative Disc Disease	5237	0%	20070920	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Chronic Back Pain:  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in October 2006 after sustaining an injury while deployed to Iraq.  An MRI of the lumbar spine in February 2006 showed large central and left posterolateral disc herniation at L4-5.  During the 12 April 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported constant low back pain due to herniated disc.  Physical examination noted absence of tenderness, and negative straight leg raise.  Range of motion (ROM) for the MEB was accomplished by physical therapy (PT) on 13 April 2007, and measurements showed forward flexion 93 degrees (normal 90), and extension of 3 degrees (normal 0-30), with combined ROM of 190 degrees (normal 240).  Painful motion was documented.

The 25 May 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of constant pain that precluded him from participating fully in his military occupational specialty duties and from wearing his personal protective equipment.  Physical examination showed normal motor strength and intact sensory function.  Straight and cross-straight leg raise tests were negative. 

At the 20 September 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported moderate constant pain in his low back without any radiation to his lower extremities.  Physical examination revealed forward flexion to 90 degrees, and normal extension.  Painful motion was present, but there was no limitation of motion related to pain.  There was mild or minimal pain of the spine with minimal spasm and minimal tenderness but no weakness.  Both sensory and motor functions were normal.  The CI denied any incapacitating episodes in a 12-month period.  The examiner also recorded a mild antalgic gait, however, there was a documented normal gait by a different examiner on the same day.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5243 (intervertebral disc syndrome), citing ROM limited by pain, without spasm, tenderness or guarding.  The VA rated the back condition 0%, coded 5237 (lumbosacral strain), based on the C&P examination, citing forward flexion of the thoracolumbar spine of greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 235 degrees.

The higher rating of 10% is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined ROM of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees.  Panel members agreed, a 10% rating and no higher was justified based on the combined ROM of 190 degrees recorded 3 months before 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic back pain with L4-5 HNP condition without neurologic abnormality coded 5243.

BOARD FINDINGS:  In the matter of the chronic back pain with L4-5 HNP condition without neurologic abnormality, the panel recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  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	
Chronic Back Pain with L4-5 HNP, without Neurologic Abnormality	5243	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170210, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180008993, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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. 

Sincerely,					      
Enclosure