RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05070
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Chemical Operations Specialist, medically separated for “upper and lower back pain” with a disability rating of 10%.  

CI CONTENTION:  The condition continues to worsen and negatively affects daily activities.  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 - 20090826	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Upper and Lower Back Pain	5299-5237	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Upper and Lower Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in November 2007 without any specific injury or trauma.  An MRI in March 2009 showed disc bulges at L4-5 and L5-S1 impressing on the thecal sac, but not contacting the nerve root.  Surgery was not indicated.  The 16 June 2009 physical therapy range of motion (ROM) study showed 95 degrees of flexion (normal 90) and combined thoracolumbar ROM of 215 degrees.  During the 7 July 2009 MEB NARSUM examination, 2 months prior to separation, the CI reported 2-6/10 low back pain that occasionally radiated to the upper back between and below the shoulder blades, right greater than left.  Aggravating factors were prolonged sitting and standing, right side leaning, leaning forward, leaning back, running and jumping.  Physical examination revealed pain with flexion, extension and rotation, but no tenderness.  Gait, motor strength, reflexes and sensation were normal.  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 10%, analogously coded 5299-5237 (lumbar strain), citing painful motion and combined ROM of 215 degrees.  The panel agreed that a 10% rating was justified for painful motion (4.59) and a combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the physical therapy examination.  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.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71, 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.  

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Dear XXXXXXXXXXXXXXXXXX

	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.