RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXX	CASE: PD-2017-05160
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060104

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “low back pain (LBP)” 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 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 - 20051129	VARD - 20060404	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5299-5237	10%	Chronic Lumbosacral Strain with Scoliosis	5237	20%	20060302	
Adjustment Disorder	Not Unfitting	Anxiety Disorder, NOS, with Symptoms of Post-Traumatic Stress Disorder	9413	10%	20060302	
Chronic Bilateral Knee
Pain	Not Unfitting	Degenerative Joint Disease and
Chondromalacia Patella Bilateral Knees	5010	10%	20060302	
Chronic Intermittent Shortness of Breath	Not Unfitting	Dyspnea with Normal PFTS	6699-
6600	NSC	20060302	
Smoking	Not Unfitting	No VA Placement	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Chronic LBP. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI developed LBP after sustaining a gunshot wound to the left upper buttock in November 2004 while deployed to Iraq. There was no associated spine, nerve, or visceral injury, although imaging revealed a small retained bullet fragment just lateral to the left sacroiliac joint. No surgery was indicated and the symptoms did not respond adequately to conservative treatment (with which the CI was not fully compliant). There were no STR clinical notes that documented any significant range of motion (ROM) limitation, gait disturbance, abnormal spinal contour, abnormal neurological findings, or incapacitation.
A 12 September 2005 orthopedic addendum to the NARSUM documented nonspecific low back

pain exacerbated by prolonged standing, walking, and sitting. The physical examination recorded a normal gait, “mild” tenderness and spasm without note of abnormal spinal contour, grossly normal flexion “without any apparent difficulty,” and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).

The 14 November 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of daily LBP with exacerbations rated 8-9/10 and triggered by “excessive walking, any lifting or most other physical activities.” The physical examination recorded a normal gait, “mild” spasm (no note of abnormal spinal contour), and normal neurological findings. Measured ROM by the NARSUM examiner from a month earlier (13 October 2005) was flexion to 75 degrees (normal 90) and combined ROM of 185 degrees (normal 240), specifying painful motion.

At the 2 March 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported daily back pain rated 5-7/10 (specifying no incapacitating episodes) that limited walking to a mile and sitting to 30 minutes. The physical examination recorded a normal gait, normal spinal contour, no tenderness, “mild” spasm without note of guarding, and normal neurological findings. Measured ROM was normal in all planes, specifying the absence of painful motion or ROM degradation with repetition. The VA X-rays showed a “mild positional scoliosis” and the examiner included scoliosis as part of the diagnosis (charted above).

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the lumbosacral condition 10%, coded 5299-5237 (analogous to lumbosacral strain), citing tenderness and ROM limitation from the NARSUM. The VA rated the lumbosacral condition 20%, coded 5237, based on the C&P examination and citing scoliosis (conceding the 20% criterion of the VASRD §4.71a spine formula for abnormal spinal contour).

Panel members first agreed that the criterion for abnormal spinal contour was not justified. Not only was it not supported by any service evidence, but the §4.71a rating description specifies “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.” The requisite severe spasm and guarding were not in evidence, and the VA examiner specified that the spinal contour was normal by examination. The panel thus agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported by the NARSUM examiner 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the lumbosacral condition.

Contended PEB Conditions: Adjustment Disorder, Bilateral Knee Pain, Intermittent Shortness of Breath, and Smoking. It is first noted that smoking is not subject to service compensation or VASRD rating and will not be addressed further. The panel’s main charge is to assess the fairness of the PEB determinations that the contended conditions were not unfitting. None of the contended conditions were profiled or implicated in the commander’s performance statement, and all were forwarded by the MEB as meeting 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 the adjustment disorder, knee condition, or shortness of breath complaint; so, no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the chronic low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended adjustment disorder, bilateral knee pain, intermittent shortness of breath, and smoking condition, 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. Therefore, the panel recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

ARXXXXXXXXXXX

Dear XXXXXXXXXXXXX:

	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,