RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-05275
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060707

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E7, Man Portable Air Defense System Crewmember, medically separated for “chronic low back pain” with a disability rating of 10%.   

CI CONTENTION:  “Requested by the DoD Wounded Warrior Act PBBR other rating conditions existed but were found unfit for rating.”  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 - 20060425	VARD - 20061205	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Degenerative Disc Disease, Low Back; Low Back Strain	5237	10%	20061101	
Post-Traumatic Stress Disorder (PTSD)	Not Unfitting	PTSD with Secondary Anxiety and Aggravated Depressive Disorder, Not Otherwise Specified	9411	50%	20060807	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery laminectomy in March 2004 for a tumor on the spinal cord in the L2-L3 area.  He deployed to Iraq 6 months later and in January 2005 he re-injured his back when his HMMWV drove over a deep hole.  He was evacuated stateside and eventually was placed in medical hold for his back in April 2005.  

The 20 June 2005 physical therapy (PT) examination for range of motion (ROM) measured in degrees, recorded active flexion to 26 (normal 90), extension 8 (normal 30), right and left lateral flexion each 24 (normal 30), right rotation 32 (normal 30), and left rotation 34 .   All ROM was limited by pain.  The examiner noted an inclinometer was used for measuring for flexion and extension; a goniometer was used for both right and left lateral flexion and both right and left rotation.  The examination made no mention of spasm, guarding, tenderness, gait, or spinal contour.  

The 20 October 2005 MEB NARSUM examination, 9 months prior to separation, noted complaints of not being able to put on or even lace his boots without pain.  He reported he could not work in his military specialty or perform any basic soldier skills.  He reported the only fitness event he could do was push-ups.  Physical examination showed a “steady” gait.  The examination did not record ROM measurements, made no mention of spasm or guarding, and did not discuss spinal contour.  

At the 15 August 2006 VA Compensation and Pension (C&P) examination, one month after separation, the examiner did not record ROM measurements, made no mention of spasm or guarding, and did not discuss spinal contour.  At the 1 November 2006 VA C&P examination, 4 months after separation, the CI reported his back pain was 6/10, and he had stiffness.  Physical examination showed the back was stable on palpation, but pain, diffuse spasm, and tightness was present.  The VA examiner measured the ROM as 65 degrees flexion and combined ROM as 215 degrees (normal 240).

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing tenderness on examination.  The VA also rated the LBP  10%, coded 5237 (lumbar spine strain), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.

The panel noted that the limitation of thoracolumbar motion recorded in the PT examination met the threshold for a 40% rating.  And although the PEB cited tenderness for their rating rationale, it did note the PT examination flexion was limited by pain but used the passive ROM of 20 degrees rather than the active ROM.  Regardless, the PT examiner measured flexion with an inclinometer rather than the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  

The panel also noted the NARSUM examination did not record ROM measurements.  The panel placed greater probative value on the VA examination proximate to separation as this was VASRD compliant.  Panel members 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 on the VA 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 IVDS 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 LBP condition.  

Contended PEB Condition:  PTSD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement when the CI was entered in the DES process.  The October 2005 commander’s statement noted the CI’s past and present duty performance was extraordinary.  After entering the DES process, the PTSD was profiled in October 2006 and was also determined to fail retention standards at the same time.  Subsequently, there was a review conducted in November 2006 which determined the PTSD condition met retention standards, which the PEB adjudicated during the Initial PEB in February 2006, again in April 2006 during a Formal PEB, and once more during a final Administrative PEB l during the same month.  
The C&P examination, one month post-separation, rendered a diagnosis of PTSD but noted the CI worked fulltime at his Guard unit doing administrative work from February 2005 to July 2006.  The CI noted he was doing largely paperwork and it was going well.  He reported supervisors were “more than happy” with his job performance.  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 low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended post-traumatic stress disorder, the panel recommends no change from the PEB determination as not unfitting.  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.  

	PD-2017-05275

ARXXXXXXXXXXX, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXXXX

	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,					      

Enclosure

	PD-2017-05275