RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX  	CASE:  PD-2021-00061
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091220

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

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 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 - 20091109	VARD - 20100419	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5239	10%	Lumbosacral Strain with Lumbar Disk Disease and Spondylolisthesis at L5-S1	5237	10%	20100224	
Moderate to Mild High Frequency Hearing Loss in the Right Ear	Not Unfitting	High Frequency Sensorineural Hearing Loss. Right Ear	6100	0%	20100308	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in June 2008 after striking his entire back on a steel bench inside a Stryker vehicle while it maneuvered through rough terrain.  Radiographic studies from August 2009 showed right paracentral disk protrusion at L5-S1 with moderate right neural foraminal narrowing, small posterior disk protrusion at L4-5 without evidence of canal stenosis or neural foraminal narrowing, and bilateral L5 spoildylolysis and minimal spondylolisthesis.  There was no surgical indication.  

During the 4 August 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, physical examination showed goniometric ROM measurements of 90 degrees flexion (normal 90) and combined ROM of 240 degrees (normal 240) after repetition with pain noted at the end of each ROM measurement.  There was tenderness to palpation.  A straight leg raise test was negative.  Gait was normal as was spinal contour. 

The 1 September 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain, which he rated at 4/10 (bothersome) to 7/10.  He had flares of pain depending upon his activity, about 1 or 2 times a day.  He monitored his activity to avoid bending that increased pain level.  Physical examination showed tenderness in the lumbar region.   Goniometric ROM measurements recorded 90 degrees flexion and combined ROM of 240 degrees after repetition, and painful motion was present.  Gait was normal, and the CI could heel and toe walk without difficulty.  The CI did not use any assistive devices.  Spinal contour was normal. 

At the 24 February 2010 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported still having lumbar spine pain, with some soreness and tenderness across the lower back. Physical examination showed a normal gait.  ROM measurements were flexion of 85 degrees and combined ROM of 235 degrees.  The examiner noted there were no changes noted with repetitive use, and that there was slight tenderness over the lumbar spine, with pain at the very extremes of flexion but with no spasms noted.  The examiner also noted this condition caused no incapacitation. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5239 (spondylolisthesis or segmental instability), citing consideration for VASRD 4.10, 4.59 and in accordance with the General Rating Formula for Diseases and Injuries of the Spine for tenderness to palpation. The VA also rated the LBP condition 10%, coded 5237 (lumbosacral strain), based on the C&P examination, citing the VASRD criteria for rating diseases and injuries of the spine.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the  VA 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.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  Tenderness and painful motion were also present in this case at the MEB and NARSUM examinations, which provided an alternate route to a 10% rating. 

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 LBP condition.  

Contended PEB Condition:  Right Ear Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not implicated in the 21 July 2009 commander’s statement.  The contended condition was profiled on 21 September 2009 as ‘H2’, and then on the same day the MEB forwarded the condition as meeting 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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the LBP condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right ear hearing loss, condition, 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 20210511, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20210017122, XXXXXXXXXXXX

Dear XXXXXXXXXXXXXX:

	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,