RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE: pd-2017-05938
BRANCH OF SERVICE:  army	SEPARATION DATE:  20060912

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

CI CONTENTION:  The back condition has worsened.  The CI also requested review of other conditions not identified by the Medical Evaluation Board (MEB) or 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’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 - 20060508	VARD - 20070306	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain 	5243	10%	Intervertebral Disc Syndrome 	5237	10%	20061117	
Left Leg Radiculopathy	Not Unfitting	Left Leg Radiculopathy	8525	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Back Pain Status Post Discectomy.  According to service treatment record and MEB narrative summary (NARSUM), the CI underwent an L2-3 micro discectomy in December 2005.  The 10 April 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, showed mild spinal tenderness, muscle spasm and positive straight leg raise (SLR) test.  Lumbar spine range of motion (ROM) was flexion of fingertips to the ankles (roughly 90 degrees).  Painful motion was present.  

The 12 April 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of low back pain with radicular symptoms.  Physical examination showed a normal gait.  The examiner reported spinal tenderness, muscle spasm and a positive SLR test.  Motor strength and sensation were normal.  The ROM test revealed flexion to 65 degrees (normal 90) and combined ROM of 185 degrees (normal 240).  Painful motion was present.  

During the 17 November 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant back pain elicited with physical activity.  Physical examination showed a normal gait and posture.  There was spinal tenderness and muscle spasm. SLR testing was negative.  The ROM test showed flexion to 90 degrees and combined ROM of 240 degrees.  Painful motion was present.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), citing localized tenderness.  The VA also rated the back condition 10%, coded 5243, based on the C&P evaluation, citing limitation of motion.  The panel agreed there was sufficient evidence of limitation of motion on the MEB NARSUM examination to warrant a 10% rating.  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.  There was no documentation of IVDS with incapacitating episodes, which would provide for a higher rating under that formula.  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 Condition:  Left Leg Radiculopathy.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Although the contended condition was profiled and judged to fail retention standards, it was not implicated in the commander’s statement.  The panel noted there was a sensory deficit per the C&P examination and an electro-diagnostic study indicated the presence of a mild left lower extremity radiculopathy, but there was no evidence of limited motor control or weakness and the sensory deficit did not significantly interfere with the CI’s duty performance.  The pain component was subsumed in the back rating.  After due deliberation, the panel concluded 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 and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left leg radiculopathy, 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.  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 20171110 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008262, 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