RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-00401 
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060522

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B, Infantryman) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic back pain…without neurologic deficit” as unfitting, rated 10%.  The CI appealed to the Formal PEB (FPEB) which affirmed the PEB unfit finding, however, increased the rating to 20%.  The CI made no further appeals and was medically separated. 

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

FPEB – Dated 20060224	VA* - (~1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, w/o Neurologic Deficit	5241	20%	Residuals of Lumbar Fusion	5242	40%	20060501	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20060612 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Back Pain Condition.  

A treatment note dated 1 February 2001 documented a 3-year history of lower back pain with left lower extremity radicular symptoms.  Radiographic evaluations dated 1 March 2002 demonstrated mild lumbosacral degenerative changes and inflammation of the left sacroiliac joint.  The CI was treated with activity modification, physical therapy, and anti-inflammatory medications without relief. On 26 January 2004, the CI underwent multilevel lumbar and lumbosacral spinal fusion.  A physical therapy note dated 1 December 2005 reported “some pain reduction after surgery,” but no pain resolution.  The pain was rated 7/10 with standing, sitting, and bending forward.  At the narrative summary (NARSUM) examination approximately four months prior to separation, the CI reported sharp, constant pain in the lower back with loss of mobility and occasional numbness and tingling in his left foot.  The physical examination was significant for paraspinal muscle spasms, a well healed incision, normal lower extremity muscle strength, and positive radicular maneuvers of the left leg (positive straight leg raise).  The examiner rendered a diagnosis of degenerative disease of the lumbar and sacral spine.  At the VA Compensation and Pension examination performed a month before separation, the CI reported chronic lower back pain which radiated to the left lower extremity.  He denied prostrating episodes.  The physical examination was significant for a normal gait, paraspinal muscle spasms, no neurologic deficits in the lower extremities, and positive radicular maneuvers bilaterally.  

The goniometric range-of-motion (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 ~6 Mos. Pre-Sep
	VA C&P ~1 Mo. Pre-Sep
(	VA C&P ~13 Mos. Post-Sep
	
Flexion (90 Normal)	45, 30, 30	20	40	
Extension (30)	5, 5, 5	5	15	
R Lat Flexion (30)	15, 15, 15	5	5	
L Lat Flexion (30)	14, 16, 15		20	
R Rotation (30)	20, 30, 25	5	20	
L Rotation (30)	25, 25, 30		20	
Combined (240)	#	45	120	
Comment	Muscle spasms	Muscle spasm	No muscle spasms, normal gait	
§4.71a Rating	40%	40%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic lower back pain condition at 20%, coded 5241 (spinal fusion).  VA rated the condition at 40%, coded 5242 (degenerative arthritis of the spine).  The Board considered whether the evidence supported a higher than 20% rating.  The Board determined that the forward flexion of 30 degrees or less documented by NARSUM and VA examinations prior to separation met criteria for a 40% rating.  The Board also determined that the evidence did not support an unfitting left lower extremity radiculopathy for additional disability rating.  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 chronic back pain 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  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 discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Back Pain  	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140113, 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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20160000448 (PD201400401)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA