RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05641
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20061113

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

CI CONTENTION:  “I was involved in an IED attack.  I have TBI, PTSD, neck, back, left leg injury, memory loss, and night mares.”  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 - 20061005	VARD - 20070227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain  	5237	10%	Intervertebral Disc Syndrome, Back	5243-5238	20%	20061016	
Neck Pain	Not Unfitting	No VA Placement	
Major Depressive Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	50%	20061023	
Adjustment Disorder 	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%  	

ANALYSIS SUMMARY:  

Chronic Mid and Lower Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in October 2002 after a motor vehicle accident.  At the 10 January 2006 neurosurgery evaluation, the CI reported 8/10 daily, lower back pain radiating to the right lower extremity from the lateral thigh to the heel.  The pain was reported as 90% back and 10% leg.  The CI denied loss of bowel or bladder control.  Physical examination showed full range of motion (ROM) of the lumbar spine.  There were no spasms or tenderness.  An MRI demonstrated multilevel degenerative disk disease at L1-2, L2-3, L3-4 and L4-5.  

At the 17 May 2006 internal medicine evaluation, the CI reported chronic lower back and right leg pain.  The examiner recommendation a lumbar fusion, but this was not performed due to deployment to Iraq.  The CI re-injured his back while deployed in another motor vehicle accident.  Physical examination showed an antalgic gait and decreased thoracolumbar flexion and extension secondary to pain.  The examiner noted mild spasms.  

The 21 August 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of chronic lower back and right leg pain.  Physical examination showed full ROM of the thoracolumbar spine with diffuse pain in all planes of motion.  There was tenderness but spasms were not present.  

At the 16 October 2006 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported pain in his lumbar spine.  The CI reported the pain as constant and severe occurring daily with numbness and tingling when walking.  He reported the use of a back brace for physical activity.  Flare-ups occurred weekly for a duration of 1-2 days.  The examiner noted that over the past 12-month period, there were three incapacitating episodes, each lasting 1 day.  Physical examination showed painful motion bilaterally along with tenderness. The gait and spinal contour were normal.  There was no atrophy, weakness, muscle spasm or guarding.  There was 70 degrees of flexion (normal 90) and 220 degrees of combined ROM (normal 240).  The examiner noted flexion was additionally limited to 55 degrees after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbar spine strain), citing pain with limited motion and diffuse superficial tenderness without spasm.  The VA rated the back condition 20%, coded 5243-5238 (intervertebral disc syndrome and spinal stenosis respectively), based on the C&P examination 1 month before separation, citing limitation of forward flexion to 55 degrees.  

The panel noted a disparity between the STR and VA ROM measurements in evidence prior to separation.  Although the VA limitation of thoracolumbar motion after repetition met the threshold for a 20% rating, the preponderance of evidence only supported a 10% rating for painful or pain limited motion as adjudicated by the PEB.  After due deliberation, considering all of 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 back condition.  

Contended PEB Conditions:  Neck Pain, Major Depressive Disorder and Adjustment Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  The panel noted that IAW DoDI 1332.38, adjustment disorder was a condition not constituting a physical disability.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions, so no additional disability ratings are recommended. 

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended neck condition, major depressive disorder and adjustment disorder, 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.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170504, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180007488, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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