RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-04668
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081226

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Military Police, medically separated for “thoracolumbar spine, intervertebral disk syndrome” with a disability rating of 10%.   

CI CONTENTION:  Review all conditions.  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 – 20081029 	VARD - 20090908	
Condition	Code	Rating	Condition	Code	Rating	Exam	
…Intervertebral Disk Syndrome	5243	10%	Thoracic, Lumbar Degenerative Disk Disease 	5243	10%	20090716	
Right Shoulder Labral Tear	Not Unfitting	Right Shoulder Tear	5299-5201	0%	20090716	
Left Varicocele	Not Unfitting	Left Varicocele	7599-7529	0%	20090716	
Plantar Fasciitis	Not Unfitting	Bilateral Pes Planus 	5276	0%	20090716	
Hypertension	Not Unfitting	Hypertension	7101	0%	20090716	
Bilateral Knee Pain	Not Unfitting	Right Knee Condition	5299-5260	NSC	20090716	
		Left Knee Condition	5299-5260	NSC	20090716	
Hypercholesterolemia	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

ANALYSIS SUMMARY: 
 
Intervertebral Disk Syndrome (IVDS).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in February or March of 2006 when he began to develop pain while running on a treadmill.  A lumbar spine MRI on 6 August 2008 showed a small, central disc extrusion at L3-L4 with mild central canal narrowing and small left paracentral protrusion at L5-S1.  A lower extremity EMG (nerve conduction study) on 28 August 2008 was negative with a diagnostic impression of “chronic thoracic and lumbar spine pain without evidence of neuropathy or myelopathy.”  The neurologist recommend continued “conservative management.”  

During the 10 September 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI complained of on ongoing back pain.  The examiner noted tenderness, but no spasm or guarding, and that the spine appeared “rather straight.” Thoracolumbar range of motion (ROM) measurements with a goniometer showed flexion of 90 degrees (normal) and combined ROM of 240 degrees (normal).  The 7 October 2007 MEB NARSUM examination, 3 months before separation, noted complaints of daily back pain.  Findings from the MEB examination were repeated.  

At the 16 July 2009 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported constant, moderate burning pain that radiated down his leg, and severe weekly flare-ups that last for hours.  Physical examination showed a normal gait, with no tenderness, spasm or altered spinal contour.  Motor, sensory and deep tendon reflex findings were normal.  Thoracolumbar ROM measurements showed flexion of 70 degrees and combined ROM of 210 degrees after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (IVDS), citing some localized tenderness.  The VA also rated the back condition 10%, coded 5243, based on the C&P examination, citing mildly limited motion less than 85 degrees and combined ROM less than 235 degrees.  Although there was insufficient limitation of motion to support a 10% rating, based on the MEB examination, the panel agreed a 10% rating was justified for the presence of tenderness.  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 IVDS 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 Conditions:  Right Shoulder Labral Tear, Left Varicocele, Plantar Fasciitis, Hypertension, Bilateral Knee Pain, and Hypercholesterolemia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that any of the conditions 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 any of the contended conditions, so no additional disability ratings are 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 right shoulder labral tear, left varicocele, plantar fasciitis, hypertension, bilateral knee pain, and hypercholesterolemia conditions, the panel recommends no change from the PEB determinations 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:

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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.

Enclosure