RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX  	CASE:  PD-2017-04009
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Counter Intelligence Agent, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  Given a 70% rating by the VA in 2010.  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 - 20050527	VARD - 20051012	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Mild Disc Protrusion. Lumbar Spine	5243	0%	20051012	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began in January 2001 while doing sit-ups.  Radiographic studies in 2003 showed degenerative facet changes at L4 and L5.  He later developed sharp, shooting pains down his lower extremities (left greater than right), but electrodiagnostic studies were negative.  A follow-up MRI in May 2004 showed minimal annular bulges in the lower lumbar spine.  At the 21 January 2005 physical medicine examination, 7 months prior to separation, the CI reported chronic low back pain.  On examination, range of motion (ROM) was limited in extension and rotation, and tenderness was present.  During the 25 January 2005 orthopedic ROM examination, the provider noted that flexion and extension were measured with an inclinometer and lateral flexion and rotation were measured with a goniometer.  After repetition, flexion was 50 degrees (normal 90) and combined ROM was 200 degrees (normal 240) without pain.  The 16 February 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of persistent low back pain.  Physical examination revealed tenderness, and ROM, after repetition, showed 50 degrees of pain-limited flexion and 200 degrees of combined ROM.  

At the 12 October 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported back pain, rated at 4-5/10, that flared to 8/10 with heavy lifting, and radiated down both legs to the knee.  He denied gait problems or incapacitating episodes during the previous year.  Physical examination showed normal gait and spinal contours, no tenderness, and full thoracolumbar ROM.  He complained of pain with flexion during repetitive testing, but the examiner noted his “facial expression was not congruent with [his] level of pain.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing tenderness and pain- limited ROM.  The VA rated the back condition 0%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination, citing “IVDS with incapacitating episodes having a total duration of less than one week during the past 12 months.”  Panel members considered the conflicting ROM measurements documented in the service and VA examinations.  The orthopedic and NARSUM measurements were identical, but not VASRD compliant because of the inclinometer measurements.  Therefore, the panel agreed the VASRD compliant VA ROM examination held more probative value for rating at separation, and concluded there was no evidence to support a rating higher than that adjudicated by the PEB.  There was no documentation of IVDS 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 back condition.  

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

	PD-2017-04009

AR20190012014, XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXX

	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,					      

	PD-2017-04009