RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04636
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “chronic low back pain” with a disability rating of 0%.

CI CONTENTION:  “How can I be 0% disability yet unfit for duty?”  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 - 20060508	VARD - 20061206	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	0%	Posterior Spinal Fusion	5243	20%	20060909	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with decompressive discectomy as well as an L5-S1 posterior spinal fusion with instrumentation and iliac crest bone graft on 25 July 2005.  The 9 November 2005 MEB NARSUM examination, 7 months prior to separation, noted complaints of increased leg pain with activity.  The CI denied lower extremity weakness and dysfunction of his bowel or bladder.  Physical examination showed a well-healed surgical incision.  He had 5/5 strength in the lower extremities and sensation was intact.  The spine had normal alignment and there was no tenderness to palpation.  

During the 26 January 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, showed a normal gait without spinal tenderness, but there was limitation of motion with decreased flexion, extension, rotation and lateral flexion.  Straight leg raise testing was negative.  At the 31 January 2006 physical therapy (PT) examination, 4 months prior to separation, the CI complained of 5/10 pain located at the posterior lower left extremity from the knee to the hip.  The pain was a constant dull ache with intermittent sharp stabbing pain.  Thoracolumbar range of motion (ROM) measurements recorded active flexion of 35 degrees (normal 90) and combined ROM of 160 degrees (normal 240) after repetitive motion.  ROM was limited by pain.  

At the 9 September 2006 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the examiner noted the CI’s spine was not ankylosed.  Physical examination showed a limping gait.  Thoracolumbar ROM measurements recorded active flexion of 60 degrees with pain and combined ROM of 200 degrees after repetitive motion.  There were no neurological abnormalities noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5241 (spinal fusion), citing no motor neurologic abnormality, no tenderness, and range of motion limited by pain.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 3 months after separation, citing flexion of 60 degrees.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the PT and VA examinations.  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 back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5241 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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170518, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180006706, 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