RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04483
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Light-Wheel Vehicle Mechanic, medically separated for “chronic mid back pain” with a disability rating of 0%.  

CI CONTENTION:  “I believe my rating did not reflect the reality of my situation, felt as though I was discharged without knowing the full scope of my injuries.”  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 - 20071011	VARD - 20080724	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mid Back Pain	5237	0%	Degenerative Joint Disease [Lumbar Spine]	5010	0%	20080603	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Mid Back Pain.  According to the service treatment record (STR) the CI suffered an atraumatic onset of back pain in January 2006, although the MEB narrative summary (NARSUM) related an onset in October 2006 after he was struck by a tent pole.  Radiographic studies showed some thoracic kyphosis (congenital) and degenerative disc disease without neural compromise.  Neurosurgery recommended conservative treatment which did not result in adequate relief of the pain.  The only STR clinical entry that mentioned range of motion (ROM) noted “moderate” limitation of extension.  
The MEB DD Form 2808 physical examination recorded “decreased flexion.”  There was consistent documentation in STR clinical entries of tenderness, spasm and painful motion.  There was STR documentation of a normal gait and normal spinal contour (notwithstanding anatomic kyphosis), and there was no contrary evidence to the above ratable features or documentation of incapacitating episodes.

The 25 September 2007 MEB NARSUM examination, 3 months prior to separation, documented non-specific back pain that the CI stated “affects my sleep, walking, lifting and physical activity.”  There was no spine examination in the NARSUM, although the examiner recorded a normal gait and normal neurological findings.  Formal goniometric ROM measurements were conducted for the MEB by physical therapy (PT) a day later (26 September).  The examiner recorded active flexion to 80 degrees (normal 90) with a combined ROM of 210 degrees (normal 240), not addressing painful motion.

At the 3 June 2008 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported that his back pain “hasn’t bothered him since getting out of the service.”  The physical examination recorded a normal gait with no tenderness, spasm or guarding.  Measured ROM was normal in all planes, specifying the absence of painful motion or degradation with repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (thoracolumbar strain), citing normal passive ROM from the PT examination and the absence of tenderness or spasm “reported in the NARSUM.”  The VA rated the back condition 0%, coded 5010 (traumatic arthritis), citing the non-compensable findings from the C&P examination.  It was noted that the VA rating decision referenced the applicable criteria of the VASRD §4.71a general spine formula, although code 5010 defaults to the different criteria of code 5003 (degenerative arthritis).

The panel noted the PEB’s 0% rating relied on passive, not active, ROM measurements, contrary to standard practice; and, that painful motion and tenderness (10% criteria) were well documented in the STR, despite not being addressed by the NARSUM or PT examiners.  The panel thus agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as per the MEB PT measurements of active ROM.  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.  There was no documentation of incapacitating episodes or requisite diagnosis of intervertebral disc syndrome that 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 10% rating for the back condition under code 5242 (degenerative arthritis of the spine).

BOARD FINDINGS:  In the matter of the thoracolumbar spine condition, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Mid Back Pain	5242	10% 	

The following documentary evidence was considered:

AR20190004465, 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.