RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXX	CASE: PD-2017-05391
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070516

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Construction Equipment Repairman, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION: Review requested of unfitting back condition, which should have been rated higher, and continues to worsen. 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 - 20070309	VARD - 20071212	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Degenerative Disk and Joint Disease,
Lumbosacral Spine…	5243	20%	20070924	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Chronic Back Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI had back surgery for an L4-L5 herniated nucleus pulposus with right nerve root impingement in 1994. He underwent a second back surgery for L4-L5 fusion in January 2006 after experiencing increased back pain following an Iraq deployment in 2004. Lumbar spine X-rays taken in December 2006 showed interval L4-L5 screw and rod fixation with associated diskectomy and intervertebral disk spacer. The CI was not a candidate for further surgery.

The 17 January 2007 MEB physical therapy (PT) examination, 4 months prior to separation, noted complaints of low back pain. Physical examination showed an abnormal gait due to muscle spasm and guarding. Spinal contour was normal and spinal tenderness was present. Thoracolumbar spine flexion was 40 degrees (normal 90) and combined range of motion (ROM) was 135 degrees (normal 240), with painful motion. The 13 February 2007 MEB NARSUM, 3 months before separation, noted complaints of chronic low back pain, and the examiner referenced the physical findings from the MEB PT examination.

At the 24 September 2007 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported flare-ups 3-4 times weekly but denied being given bed rest in the last 12 months for back pain. Physical examination showed a normal gait and erect posture with spinal tenderness but no muscle spasm. Repetitive lumbar spine flexion was to 60 degrees and combined ROM was 135 degrees, with painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing spine ROM limited by pain, with spasm and tenderness; with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion. The VA rated the back condition 20%, coded 5243 (intervertebral disk syndrome (IVDS)), based on the C&P examination, citing limitation of flexion. Panel members agreed that a 20% rating, but no higher, was justified for limitation of flexion as reported on the MEB PT and VA ROM examinations. There was no evidence of IVDS with incapacitating episodes to support 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 5241.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5241 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 Back Pain	5241	20%	

2	PD-2017-05391

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

AR20200004095, 

Dear XXXXXXXXXXXX:

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.

Sincerely,

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