RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00068
BRANCH OF SERVICE:  Army	BOARD DATE:  20141118
SEPARATION DATE:  20070906

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (63A30/M1A1 Mechanic) medically separated for chronic low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U2/L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain with associated right leg and knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” as unfitting rated 10%, with likely application of AR 635-40.  The remaining three conditions were determined to be not unfitting.  An IPEB administrative correction changed the unfitting condition to “spinal fusion with chronic low back pain”, without change to the fitness disposition or rating.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Yes I wish to have my case review.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting low back condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation and to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service Admin IPEB – Dated 20070803	VA* - (1 1/2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion with Chronic Low Back Pain	5241	10%	Lumbar Spine Fusion with Grade I Anterolisthesis of L5 on S1	5242	40%	20071026	
Other x 3 (Not In Scope)	Other x 15	
Combined:  10%	Combined:  90%	
*Derived from VA Rating Decision (VARD) dated 20080618 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Low Back Condition.  Review of the service treatment record (STR) indicates that the CI injured his coccyx (tailbone/lower back/pelvis) in March 2004; the initial compliant of low back pain (LBP) and right hip pain was in June 2004.  The CI reported that his LBP intermittently radiated into the right buttock and leg (hamstring or quadriceps), with burning that eventually turned into numbness that was aggravated by prolonged sitting and walking.  There were no reports of loss of bowel or bladder function.  Two magnetic resonance imaging showed no active fracture; there was degenerative disc disease at L5-S1 (arthritis of the lower spine-DDD), first degree anterior spondylolisthesis of L5-S1 (forward displacement of one vertebra over the one below it) and disc bulge with bilateral L5 foraminal stenosis (impingement of the nerve space).  In May 2006 (16 months prior to separation) the CI underwent back surgery (L5-S1 posterior laminectomy with internal fixation [PLIF]).  However, the CI had persistent back pain following surgery while the leg symptoms were noted to have significantly improved.

During a neurosurgery examination (performed 12 months prior to separation), the CI complained of tenderness to palpation at his surgical wound site, noted to have full strength and sensation in his lower extremities and a normal gait.  At the MEB examination (5 months prior to separation) there was slight tenderness at the surgical wound site, normal motor and sensory exam and limitation of movements due to pain.  The ROMs done by physical therapist for the MEB exam were as following, forward flexion 30 degrees (normal 90 degrees) and combined ROM 90 (normal 240 degrees); examiner noted ROM was limited by pain.

At the VA Compensation and Pension (C&P) examination (performed approximately 2 months after separation), the CI reported that his back pain went down both legs and that he used a back brace at times.  On examination the CI had antalgic gait, flattening of the curve of the lower (lumbar) spine, mild (4/5) decrease in strength of all muscles of both lower extremities and decreased sensation (light touch and pinprick) anteriorly on the left lower leg.  The CI had painful and limited forward flexion of 30 degrees (normal 90 degrees) with additional loss of motion on repetitive use to 25 degrees and combined ROM of 125 degrees (normal 240 degrees).  The examiner documented physician notes for taking time off from work for a total of 2 days a week, under the heading of incapacitating episodes.

A VA C&P exam performed 12 months after separation demonstrated painful flexion of 55 degrees (normal 90 degrees) and combined ROM of 110 degrees (normal 240 degrees) with no additional loss of motion.  The CI had antalgic gait and “thoracic sacrospinalis” tenderness and guarding.  A remote VA C&P examination (performed approximately 3 years post-separation), showed forward flexion of 20 degrees (normal 90 degrees) and combined ROM of 85 degrees (normal 240 degrees), normal strength for bilateral upper and lower extremities, normal spinal contour and normal gait.  VA Rating Determination (VARD) dated March 2010 awarded individual unemployability, based in part on the back condition, effective January 2008.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB 
~4 1/2 Mo. Pre-Sep	VA C&P
~2 Mo. Post-Sep	VA C&P
~12 Mo. Post-Sep	VA C&P
~2 1/2 Yr. Post-Sep	
Flexion (90 Normal)	30	30	55	20	
Combined (240)	90	125	110	85	
Comment	Goniometer; painful motion	Antalgic gait; 4/5 strength all leg muscle groups (bilateral)	Antalgic gait, normal strength of lower extremities		
§4.71a Rating	40% (PEB 10%)	40%	20%	40%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% with code 5241 (spinal fusion), citing decreased ROM “with pain being the limiting factor”.  This was adjudged likely application of AR 635-40 (rating only mechanical limitation of motion).  The VA rated the CI back conditions at 40% with code 5242 (degenerative arthritis of the spine) for “forward flexion 30 degrees or less”.

The source MEB ROMs documented pain-limited forward flexion to 30 degrees (similar to the VA exam) and the Board found the similar measurements and disability ratings from these two exams close to the date of separation to be compelling to support a 40% rating.  The improved ROM of the later VA examination was deemed to represent post-separation improvement and was also offset by the worsened disability picture at subsequent VA exams.  The Board did not see any documentation of ankylosis of the spine, or incapacitating episodes (physician prescribed bed rest) approximating 6 weeks, or other evidence that would support a higher rating.  Pain, whether or not it radiates, is considered under the general rating formula of the spine and there was scant evidence of non-pain radicular symptoms following surgery.  No peripheral nerve condition (radiculopathy “associated right leg and knee pain”) rose to the level of being separately unfitting.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on AR 635-40 for rating the low back condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a, and no unfitting peripheral nerve condition.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows and that the service discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Spinal Fusion with Chronic Low Back Pain	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20150003738 (PD201400068)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay,] and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl	

CF: 
(  ) DoD PDBR
(  ) DVA