RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04531
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20061208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Combat Engineer, medically separated for “recurrent low back pain” with a disability rating of 0%. 

CI CONTENTION:  His conditions continue to worsen.  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 – 20061025	VARD – 20070516	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent Low Back Pain 	5299-5242	0%	Lumbar Degenerative Disc Disease with Bilateral Lower Extremity Radiculopathy	5242	20%	20070323	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Recurrent Low Back Pain (LBP) Secondary to Degenerative Disc Disease (DDD).  According to the service treatment record and MEB narrative summary (NARSUM), the CI injured his back while performing heavy lifting on deployment in 2006.  Magnetic resonance imaging (MRI) on 27 June 2006 revealed lumbosacral disk protrusion without surrounding nerve compression.  During the 7 September 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported chronic LBP that radiated to the buttocks.  The CI’s physical examination (PE) revealed pain with spinal flexion to 85 degrees (normal 90).  Peripheral reflexes were normal.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 13 September 2006 (3 months prior to separation) documented forward flexion of 30 degrees and combined ROM of 135 degrees (normal 240).  Painful motion was present.  The 10 October 2006 MEB NARSUM examination, 2 months prior to separation, did not reveal spinal tenderness or surrounding muscle spasms. Motor activity, sensation, and reflexes were normal.  No ROM measurements were documented.  

At the 23 March 2007 VA Compensation and Pension (C&P) evaluation, 4 month after separation, the CI reported complaints of constant LBP, rated 5/10.  His PE revealed normal posture and an antalgic gait.  The examiner stated “limited effort” on thoracolumbar ROM with repetition.  Forward flexion was 40 degrees and painful.  The combined ROM was 180 degrees.  There was spasm, guarding and minimal tenderness with preserved spinal contour.  

During the 30 August 2007 intake appointment with the VA (9 months after separation) the CI reported continued LBP.  His PE revealed tenderness about the lumbar spine.  Spinal ROM and gait were both noted to be “normal.”  At the 20 December 2007 follow-up, there was no spinal tenderness nor evidence of adverse disc pathology.  Spinal ROM was again reported as “normal.”  X-rays performed on 27 December 2007 noted, “unremarkable lumbar spine.”   

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition at 0%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing ROM limited by pain.  The VA rated the same back condition at 20%, coded 5242, based upon the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The panel reviewed and considered the ROM evidence which varied greatly from 85 degrees of forward flexion down to 30 degrees 6 days later and “normal” ROM after separation.  The panel noted that the limitation of thoracolumbar flexion (30 degrees) reported in the MEB PT examination suggested consideration for a 40% impairment rating.  However, the therapist did not comment on tenderness, spasms or gait and the panel questioned if the CI attempted full excursion or stopped when pain began.  Panel members agreed that the VA examination, performed about the same time relative to separation, was more detailed and compliant with VASRD rating guidelines.  Therefore, the panel placed greater probative value on the VA examination which would support a ROM limitation impairment rating of 20%.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the low back condition.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5242 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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Recurrent Low Back Pain	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170501, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20180006655, 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