RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05505
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Automated Logistical Specialist, medically separated for “non-radicular and non-surgical low back pain (LBP)” with a disability rating of 20%.  

CI CONTENTION:  The PEB should have medically retired him.  In addition to a re-evaluation of his case, the CI also requested review of a condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 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 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 - 20080802	VARD - 20090601	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Non-Radicular and Non-Surgical LBP	5237	20%	DDD L5-S1	5243	20%	20080812	
Es Thrombosis (Esotropia)	Not Unfitting	Esotropia	6099-6092	NSC	20080812	
Left Knee Pain	Not Unfitting	Left Knee Patellar Tendonitis	5024-5257	10%	20080812	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Non-Radicular and Non-Surgical LBP.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in March 2005 after heavy lifting.  Radiograph imaging from July 2005 showed minimal spinal curve, minimal degenerative disc disease (DDD) at L5-S1 with minimal midline protruded appearance, and an annulus tear.  Spinal canal and neural foramina were widely patent in all visualized levels.  There was no surgical indication.  

The 28 September 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain which was 2-3/ 10 when at rest and a 10-12/10with quick movement, twisting, turning, and bending over.  The NARSUM examiner noted the thoracolumbar spine range of motion (ROM) measurements recorded in the NARSUM were performed on 16 August 2007, 6 months prior to separation.  The measurements showed flexion to 50 degrees (normal 90) and combined ROM was 175 degrees (normal 240) after 3 repetitions for all movements.  There was tenderness but no abnormal gait due to muscle spasm or guarding, no abnormal spinal contour such as scoliosis or reverse lordosis, or abnormal kyphosis. The examiner noted “yes” to muscle spasm or guarding, but did not note if it was one or both of these.

At the 12 August 2008 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported stiffness, limited motion and back pain with radiating pain into the right leg to the toes.  The CI also reported two incapacitating episodes lasting 3 days.  Physical examination revealed 5/5 muscle strength and scoliosis.  There was no evidence of spinal ankylosis.  ROM measurement showed flexion to 33 degrees with pain; and combined ROM was 175 degrees, with all movements producing pain.  There was no evidence of additional limitation of motion or functional loss on repetition.  The examiner noted the CI had a “stiff backed gait.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the LBP 20%.  The PEB used code 5237 (lumbar spine strain), and cited “tenderness, muscle spasm and guarding, 50 degrees flexion, combined ROM 180 degrees, normal gait and no spinal contour abnormalities.”  The VA coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing limitation of flexion to 33 degrees with painful motion and acute exacerbations of back pain.  

The panel agreed a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and combined ROM (not greater than 120 degrees) as reported on the NARSUM and VA examinations.  The panel noted muscle spasm and guarding severe enough to result in an abnormal gait or spinal contour, as reported on the VA examinations, would alternatively support a 20% rating but provided no benefit to the CI.  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 low back condition.  

Contended PEB Conditions:  Es Thrombosis (Esotropia) and Left Knee Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting (NOTE:  “Es Thrombosis” appeared to be a typographical error of “esotropia,” an eye condition for which the CI underwent surgeries, with residual light sensitivity).  Neither of the conditions were profiled or implicated in the commander’s statement, and neither failed retention standards.  There was no performance-based evidence from the record that either 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 either of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the non-radicular and non-surgical low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended “Es Thrombosis” (esotropia) and left knee conditions, 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 no modification or re-characterization of the CI’s disability and separation determination.   

ARXXXXXXXXXXX, XXXXXXXXXXXXXXX 

Dear Mr. XXXXXXXXXX:

	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.