RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04954
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070302

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

CI CONTENTION:  “I don’t remember having the opportunity to get rated while in the Army.”  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 - 20070123	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in November 2005 without frank injury.  A bone scan was normal.  Four physical therapy visits during the period between 16 November 2005 and 3 February 2006 showed forward flexion of fingertips to within 4 inches of the floor (to within 6 inches is normal), fingertips to the proximal one third of the tibia (approximately 60 to 80 degrees), fingertips to within 3 inches of the floor and at the last examination fingertips to within 4 inches of the floor.  Range of motion (ROM) was normal in all other planes of motion or near normal (90%).  An orthopedic examination on 3 October 2006 showed normal posture and gait.  There was normal spinal curvature without tenderness or muscle spasms and ROM was reported as normal.  Radiograph imaging from 17 October 2006 showed degenerative disc disease with disc protrusion at T11-12 and probable annular tear at L5-S1.  The orthopedic evaluation on 23 October 2006 was fully normal and unchanged from the 3 October 2006 examination.  The 24 October 2006 physical therapy ROM examination for the PEB, 4 months prior to separation, showed thoracolumbar flexion of 40 degrees (normal 90) and combined ROM of 175 degrees (normal 240), limited by pain.  The therapist indicated the back ROM was measured with a combination of inclinometers and goniometer.  

At the 28 November 2006 MEB NARSUM examination, 3 months prior to separation, the CI complained of chronic back pain, but denied radicular pain, paresthesias, lower extremity (LE) weakness or bowel or bladder dysfunction.  Physical examination showed no abnormal spinal contour, tenderness or spasm and LE motor strength, sensation and reflexes were normal.  The 19 December 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, showed a normal spine evaluation.  A family practice health clinic examination on the same day, noted to be part 2 of the medical board examination by the same examiner, showed tenderness without muscle spasms.  There was no comment on ROM.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (lumbosacral strain), citing ROM limited by pain without tenderness or spasm.  The panel noted the 24 October 2006 physical therapy examination specifically arranged to measure ROMs for the PEB’s adjudication was a non-standard examination.  The examiner measured some planes of motion with inclinometers and not with the required goniometer specified by the VASRD (§4.71a, Plate V).  The panel noted other examinations in evidence did not record precise ROMs according to VASRD standards either.  The panel noted that while the examinations in the STR were not goniometric, the descriptions of the motion as normal, near normal, or fingers to within 3 or 4 inches of the floor were sufficiently detailed to conclude there was mild limitation of motion that did not approach the 60 degrees limitation required to support the 20% rating.  Additionally, the 19 December 2006 family practice health clinic examination given the same day as the MEB examination noted the presence of localized tenderness.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes, which would provide for a higher rating under the alternate VASRD rating formula for IVDS.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10% coded 5237 IAW VASRD §4.71a.  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	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