RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05545
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic low back pain” with a disability rating of 0%.   

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’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 - 20061107	VARD - 20071023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	0%	Lumbosacral Degenerative Disc Disease	5237	0%	20070702	
Depression	Not Unfitting	No VA Examination in Evidence	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in August 2005 after doing buddy-carry drills, pushups and marching.  The MRI showed L5-S1 intervertebral disc desiccation and mild bilateral facet hypertrophy.

During the 14 August 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the examiner recorded the CI had continuous pain in the lower back, right leg numbness into the foot with extension and decreased sensation to touch on the right foot.  Physical examination showed limitation of motion with extension.  
At the 5 September 2006 MEB NARSUM examination, 4 months prior to separation, the CI reported the inability to run, perform sit-ups, complete an Army fitness test or wear military gear.  Physical examination showed a normal gait.  There was no tenderness.  Thoracolumbar range of motion (ROM) measurements showed flexion of 100 degrees (normal 90) and combined ROM of 235 degrees (normal 240).  Lower extremity motor strength and reflexes were normal.  There was mild subjective decrease to tactile stimulation in the right lateral foot.  

The 2 July 2007 VA Compensation and Pension (C&P) evaluation, 6 months after separation, noted complaints of stiffness, difficulty moving or bending, weakness and constant pain.  The CI was not being treated and noted his condition had not been incapacitating.  On examination, posture and gait were normal.  There was no evidence of radiating pain on movement; muscle spasm was absent and no tenderness was noted.  There was negative straight leg raise testing.  Thoracolumbar ROM measurements showed flexion of 90 degrees and combined ROM of 240 degrees.  The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.  There was symmetry of spinal motion with normal curvature of the spine.  There were no signs of intervertebral disc syndrome.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 0%, coded 5237 (lumbar spine strain), citing no tenderness to palpation, no spasm noted and motion Limited by pain.  The VA also rated the LBP condition 0%, coded 5237 (lumbar spine strain), based on the C&P examination 6 months after separation, citing forward flexion of the thoracolumbar spine of greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 235 degrees.

The panel agreed that a 10% rating, but no higher, was justified for combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the NARSUM 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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5237.  

Contended PEB Condition:  Depression.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  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 that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended depression, 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.  

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170716, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180007477 XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure