RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04512
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090120

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

CI CONTENTION:  In addition to the migraines, the CI requested review of 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’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 – 2008109	VARD - 20090813	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	L4-S1 Disc Bulge 	5021-5237	10%	20090224	
Migraine Headaches	Not Unfitting	Migraine Headaches in Remission	8100	0%	20090224	
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 sustained a back injury in April 2005 when he fell from a vehicle, with a second injury in June 2005 when he was thrown in an explosion and landed on his back.  An MRI in February 2008 revealed disc bulges and neural foraminal narrowing.  He was evaluated by orthopedics and determined not to be a surgical candidate.  

During the 30 June 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI indicated he had recurrent back pain and reported he was being treated for spinal stenosis, herniated discs and an annular tear.  The examiner noted the CI had daily pain without radicular symptoms and was happy with current relief from medications and physical therapy (PT).  No other back examination findings were recorded.  The 3 July 2008 MEB NARSUM examination, 7 months prior to separation, noted complaints of chronic low back pain.  The physical examination section referred to the MEB examination above.  

The PT evaluation on 5 August 2008 showed a normal gait without spasm or abnormal spinal contour, but there was tenderness.  Thoracolumbar range of motion (ROM) measurements showed flexion of 75 degrees (normal 90) and combined ROM of 215 degrees (normal 240).  Limitation of motion was secondary to pain and there was no appreciable change after repetition.  

At the 24 February 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported good response to current treatment and he was applying for the police academy.  Physical examination noted mild paraspinal muscle spasms with normal ROM of the lumbar spine.  Gait was not addressed.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbar spine strain), citing tenderness and loss of forward flexion.  The VA also rated the back condition 10%, analogously coded 5021-5237 (myositis – lumbar spine strain) based on the C&P examination.  

The panel 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 the combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the PT ROM evaluation.  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 intervertebral disc syndrome 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 back condition.  

Contended PEB Condition:  Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  At the neurology appointment on 10 June 2008, the CI reported his headaches were well controlled and denied any recent headaches.  The migraine were not profiled, implicated in the commander’s statement or judged to 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended migraine headaches, 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:

AR20180016643, 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.

	A copy of this decision will be mailed to your counsel: