RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-04789
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Carpentry/Masonry Specialist, medically separated for “low back pain (LBP)” with a disability rating of 20%.  

CI CONTENTION:  “I was informed by the VA that the ratings may have been graded too strictly upon discharge and I may qualify for retirement.”  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 - 20090514	VARD - 20091201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5239	20%	Spondylolisthesis of the Lumbar Spine	5239	20%	20090908	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

LBP.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began with no specific injury or accident in July 2007 after a knotting pain developed in his lower back which gradually worsened.  He was treated with temporary profiles, Motrin, and Naproxen, however the pain and discomfort continued.  An MRI, obtained in October 2008, showed a Grade 1 spondylolisthesis.  He was then treated with physical medicine, rehabilitation, and physical therapy.  The LBP gradually worsened but surgery was not indicated.  

At the 15 December 2008, Physical Medicine and Rehabilitation (PM&R) examination as detailed in the MEB NARSUM, the CI continue to report LBP.  Thoracolumbar ROM showed flexion at 47 degrees (normal 90) with pain, and total ROM at 108 degrees (240 normal) also with pain.  

During the 25 February 2009 orthopedic examination 6 months prior to separation, the CI reported persistent LBP with no change or improvement.  Physical examination of the thoracic spine revealed normal alignment and thoracic kyphosis.  No midline tenderness was noted.  The lumbar spine showed normal alignment with tenderness to the paramusculature.  Muscle spasms were present.  Forward flexion at the waist was 45 degrees and restricted by pain; extension was 15 degrees.  Lateral bends as well as rotation ROM were noted as full and all maneuvers were painful.  Muscle tone and strength were normal.  Reflexes were 2+.  His gait was noted to be antalgic with the CI holding a cane in his right hand for ambulation.  He was unable to perform a toe or heel walk secondary to pain.
 
The 26 March 2009 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic, constant, crushing pain at the lower lumbar spinal region that worked its way up the spine as the day progressed.  The pain was aggravated by sit-ups, push-ups, running or jumping, as well as impact activity, standing greater than 10 minutes, using stairs, walking for greater than 3/4 mile, sitting for greater than 35 minutes, and repetitive bending.  Rest and medication alleviated his pain.  Pain flare-ups rated 8-9/10 lasted from seconds up to one minute and occurred approximately two times per day.  Physical examination referenced the December 2008 PM&R and the February 2009 orthopedic examinations.  

At the 8 September 2009 VA Compensation and Pension (C&P) examination one month after separation, the CI reported morning pain in the small of his back.  He did basic stretching, but did not take medication to relieve the pain.  He described “warm pain” which he rated as it 3/10.  Physical examination showed an antalgic gait and obvious limp.  There was tenderness of the mid thoracic spine, lumbar vertebrae, and right sacroiliac joint.  Painful ROM was flexion 45 degrees and combined ROM of 195 degrees, after repetitive motion.  He was able to lie nearly flat on the examination table and perform straight leg raise tests to 70 degrees on the right and 80 degrees on the left, but he was limited by a hamstring pull bilaterally.  This aggravated the right-side back pain and right hip pain, but did not produce radicular symptoms.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the LBP 20%, coded 5239 (spondylolisthesis or segmental instability). The PEB cited tenderness and probable spasm, antalgic gait, normal strength, no sensory deficit, and ROM at 47 degrees forward flexion.  The VA rating was based on the C&P examinations and cited forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine not greater than 120 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) and combined ROM (not greater than 120 degrees), as reported on the VA examinations.  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 lumbosacral condition.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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:

	PD-2017-04789

[AR NUMBER], XXXXXXXXXXXXXX 

Dear XXXXXXXXXXX

	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

	PD-2017-04789