RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-05718
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071220

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

CI CONTENTION:  Conditions continue to worsen and negatively impact daily activities.  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 - 20071030	VARD - 20080519	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Sprain with Chronic Pain Syndrome	5025-5237	40%	20071221	
Symptomatic Pes Planus	Not Unfitting	Bilateral Pes Planus	5276-5279	10%	20071221	
Recurrent Right Scrotal Swelling	Not Unfitting	Right Testicle Hydrocele	7599-7523	0%	20071221	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in September 2006 after reacting to direct and indirect fire during military training exercises.  An October 2006 MRI showed minor bulging at L5-S1, causing slight indentation of the thecal sac with no significant spinal canal stenosis and no neural foraminal narrowing.  He had no significant relief with physical therapy, and a spine specialist recommended continued conservative management with anti-inflammatory medication and participation in core strengthening exercises for his degenerative disc disease and back pain.  A facet joint injection and various medications provided no further improvement. 

During the 26 December 2006 spine center examination, 12 months prior to separation, the CI reported centralized back pain extending from L2-L5, without leg pain, numbness, tingling, or weakness.  Physical examination showed lumbar spine range of motion (ROM) of flexion to 40 degrees (normal 90) which brought the CI’s fingertips inches from the floor.  Lumbar extension was approximately 20 degrees (normal 30), with pain.  During a spine center visit on 5 February 2007, 10 months prior to separation, the CI reported low back pain, rated at 3/10,  that extended into the upper buttock region with standing for prolonged periods, but no specific lower extremity symptoms.  Physical examination revealed a normal gait with tenderness of the paraspinal muscles from approximately L2 to the sacrum.  He was able to forward flex to 12 inches from the floor (approximates to 70 degrees) and extend to 30 degrees, with pain.  

The 10 October 2007 MEB NARSUM examination, 2 months prior to separation, noted CI complaints of recurring back pain, rated at 4-8/10 without radiation, numbness, or tingling into the lower extremities.  Physical examination from 23 August 2007 showed tenderness over L1-S1 levels, without spasm.  Spine ROM after three repetitions showed flexion of 25 degrees, and extension to 10 degrees, limited by pain, with a combined ROM of 150 degrees (normal 240). 

At the 21 December 2007 VA Compensation and Pension (C&P) examination, 1 day after separation, the CI reported daily lumbar pain of moderate intensity with no radiating pain or neurologic symptoms of the lower extremities.  Physical examination showed no tenderness, abnormal spinal contour, muscle spasm, or guarding.  Flexion was to 30 degrees, and extension to 0 degrees, with a combined ROM of 130 degrees, and pain in all planes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing tenderness without spasm and ROM limited by pain.  The VA rated the low back condition 40%, analogously coded 5025-5237 (fibromyalgia and lumbosacral strain) based on the C&P examination, citing limitation of forward flexion.  Panel members agreed that a 40% rating, but no higher, was justified for limitation of flexion (30 degrees or less) as reported on NARSUM and VA examinations.  There was no unfavorable ankylosis of the entire thoracolumbar spine to support the 50% rating, and was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  Additionally, there was no associated radiculopathy for separate peripheral nerve rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the low back condition, coded 5237.  

Contended PEB Conditions:  Symptomatic Pes Planus and Recurrent Right Scrotal Swelling.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement, and did not 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.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended symptomatic pes planus and recurrent right scrotal swelling, 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.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain 	5237	40%	

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a permanent disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 

	A copy of this decision has also been provided to the Department of Veterans Affairs.