RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-04912
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061108

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

CI CONTENTION:  “My VA [rating] was 30% and my military [rating] was only 10%.  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 - 20061023	VARD - 20070307	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Upper Back Pain	5299 5237	10%	Midline Disc Herniation and Annulus Tear	5243	20%	20061031	
Right Achilles Tendonitis	Not Unfitting	Right Achilles Tendonitis	5024	10%	20061031	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Chronic Upper Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in October 2005 after lifting a picnic table.  Despite profiles, non-steroidal medication, physical therapy and three epidural injections his condition did not improve.  X-rays showed suspicious narrowing at T8-T12 and an MRI showed degenerative disc disease in the mid-thoracic levels, worse at T5-T6, with small disc herniation and annular tear.  He was not a surgical candidate.  
The 29 June 2006 MEB NARSUM, 5 months prior to separation, noted complaints of constant 8/10 upper back pain at rest and 9/10 with certain activities.  At the 6 September 2006 physical therapy range of motion (ROM) examination, 2 months prior to separation, thoracolumbar ROM measurements showed flexion of 90 degrees (normal) and combined ROM of 205 degrees (normal 240), after repetition and limited by pain.  The physical therapist noted increased pain at T3-T6 during motion.  The manual muscle testing in the torso was 3+ in all planes due to pain.  Also noted was tightness and muscle spasm.  The CI was able to perform activities of daily living.

During the 31 October 2006 VA Compensation and Pension (C&P) examination, 1 week before separation, the CI reported achiness in the T5-6 area and constant pain.  Any strenuous activity made it worse.  Physical examination showed tenderness at T5-6 in the midline.  Spine was straight and there were no spasms.  Thoracolumbar flexion was 70 degrees and combined ROM was 220 degrees.  There was pain with flexion, starting at 50 degrees, and right lateral flexion.  Pain increased with repetitive motion, but weakness or fatigability did not.  Straight leg raising revealed pressure at 45 degrees bilaterally.  Sensory testing was intact.  There was no noted spasm and CI had a normal gait.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain), citing range of motion limitations secondary to pain.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing 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 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees), as reported on the VA examination most proximate to separation and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the NARSUM.  A 10% rating was also justified for the presence of painful motion.  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:  Right Achilles Tendonitis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition failed retention standards, but was not implicated in the commander’s statement and was only profiled at L2.  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 right Achilles tendonitis, 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.  

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Dear XXXXXXXXXX:

	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.
	
Sincerely,					      

Enclosure