RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04929
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Signals Collector/Analyst, medically separated for “chronic low back pain” 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 - 20060705	VARD - 20071128	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Lumbar Strain	5237	10%	20070830	
Left Knee Pain	Not Unfitting	Left Knee Strain	5260	10%	20070830	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI had a history of non-duty-limiting back pain until August 2005 when her back “went out” when she was getting up from a table.  MRI studies showed a small annular tear and disc protrusion at L4-5 with canal stenosis.  The 22 May 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, showed normal heel-to-toe walk, motor strength and sensory function.  The range of motion (ROM) evaluation showed flexion of 90 degrees (normal) and combined ROM of 240 degrees (normal).

The 22 May 2006 MEB NARSUM examination, noted complaints of back pain radiating to both buttocks, worsening with sitting, driving and bending forward or backward).  No bladder or bowel dysfunction was reported.  Physical examination showed normal bulk, tone and strength throughout.  Sensory examination was normal as were deep tendon reflexes.  The ROM evaluation was unchanged from the ROM measurements noted in the MEB examination above.  

At the 30 August 2007 VA Compensation and Pension (C&P) examination, 11 months after separation, the CI reported severe, crushing, aching and sharp back pain elicited by physical activity.  The CI reported her condition had not caused incapacitation.  Physical examination showed normal gait and curvatures of the spine.  The ROM evaluation showed flexion of 90 degrees and combined ROM of 240 degrees.  The examiner noted painful motion after repetitive use that caused functional impact.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5299-5237 (lumbosacral strain), citing combined thoracolumbar ROM of 240 degrees.  The VA rated the back condition 10%, coded 5237 (lumbosacral strain), based on the C&P examination, citing painful motion.

There was no limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine and the MEB and VA C&P examinations. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. However, the panel majority noted painful motion with functional loss documented during the C&P examination, and although not clearly stated, the MEB, thereby, supporting a 10% rating IAW VASRD§§§ 4.59, 4.40 and 4.45.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the back condition, coded 5299-5237.  

Contended PEB Condition:  Left Knee Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  Although the contended condition was profiled, the profile allowed the CI to walk, bike or swim at own pace and distance, and noted the CI was healthy without any medical condition that would prevent deployment.  Specific restrictions related to the knee were not in evidence.  The contended condition was not implicated in the commander’s statement or judged to fail retention standards.  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, the panel majority recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  The single voter for dissent recommended no change but did not elect to submit a minority opinion    In the matter of the contended left knee condition, the panel agrees it cannot recommend it for additional disability rating.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5299-5237	10%	

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 to 10% 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