RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05055
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Multiple Launch Rocket System Operational Fire Direction Specialist, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  In addition to the back, right hand, sleep apnea and hypertension, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  

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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20091007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain 	5099-5003	10%	Herniated Intervertebral Disc 	5243	20%	20090828	
Hypertension	Not Unfitting	Hypertension	7101	0%	20090828	
Right Hand Pain, Dominant Hand	Not Unfitting	Fracture Little Finger, Right 	5230	0%	20090828	
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	NSC	20090828	
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’s back condition began in January 2007 after gradual onset while performing unloading duties.  X-rays were negative, but an MRI revealed bulging disks in the lower back.  The 12 January 2009 MEB NARSUM examination, 7 months prior to separation, noted complaints of sharp throbbing pain in his lower back without lower extremity numbness or weakness.  He had daily flare-ups due to prolonged standing or lifting.  Physical examination showed back tenderness without abnormal spinal contour or antalgic gait. Motor strength was normal in the lower extremities and straight leg raise testing was negative.  Range of motion (ROM) testing showed painful flexion of 70 degrees (normal 90) and painful combined ROM of 155 degrees (normal 240), after repetition.  

At the 28 August 2009 VA Compensation and Pension (C&P) examination, 1 day after separation, the CI reported low back pain with prolonged standing.  There was no incapacitating episodes.  The ROM examination showed flexion of 50 degrees and combined ROM of 180 degrees, after repetition, with pain on motion.  On examination, there were no spasms.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5099-5003, citing forward flexion to 70 degrees.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing forward flexion limited to 50 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) as reported on the VA examination proximate to separation.  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 recommends a disability rating of 20% for the back condition, coded 5243. 

Contended PEB Conditions:  Hypertension, Right Hand Pain and Sleep Apnea.  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, implicated in the commander’s statement or judged to 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, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended hypertension, right hand pain and sleep apnea, 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.  

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 	5243	20%	

AR20190006155, 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 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.