RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00472
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070819

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Water Treatment Specialist) medically separated for a low back pain.  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 “chronic low back pain with spondylolisthesis”, “degenerative disk disease at L4/L5 and L5/S1”, and “right leg L5 radiculopathy” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated the low back pain condition as unfitting, rated 10%, with likely application of Army Regulation (AR) 635-40.  Although the MEB forwarded the right leg L5 radiculopathy as not meeting retention standards, the IPEB found the condition to be not separately unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests all conditions be considered.  His complete submission, with attachments, is at Exhibit A.  

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: 

IPEB - Dated 20070628	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis L5-S1…	5239	10%	L5-S1 Laminectomy w/ Fusion w/ Right Leg Radiculopathy	5239	10%	20080128	
R Leg L5 Radiculopathy	Not Unfitting					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  #%	
*Derived from VA Rating Decision (VARD) dated 20080327 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Low Back Condition.  Treatment records evidence that the CI sustained a back injury in 2006.  Subsequent to the injury he continued to report lower back pain with radiation to the right lower extremity.  An electromyogram performed 26 April 2007 demonstrated mild to moderate right lumbar 5 chronic radiculopathy.  At the narrative summary (NARSUM) examination performed 2 months prior to separation the CI reported achy, burning pain in the lower back which worsened with activity.  The examiner referenced radiographic evaluations which demonstrated lumbosacral degenerative disc disease (DDD), foraminal stenosis at L4-5 and no spinal stenosis.  The physical examination demonstrated tenderness to palpation from lower thoracic to lumbar region, severe tenderness pain at the right sacroiliac joint, positive radiculopathy maneuvers bilaterally, and pain limited motion.  The sensory examination was normal.  The examiner rendered diagnoses of chronic low back pain, DDD at L4/L5 and L5/S1, and right leg radiculopathy.  The CI had spinal decompression and fusion stabilization surgery in December 2007; 4 months after separation.  At the VA Compensation and Pension (C&P) examination performed 5 months after separation, the CI reported constant, achy lower back pain with burning pain down the right lower extremity. He rated the pain 5/10, but weekly flares to 10/10 which lasted 30 to 45 minutes.  On physical examination there was decreased range-of-motion (ROM) which worsened with repetitive motion.  There was positive radiculopathy testing on the right and an antalgic gait.  The sensory and motor examinations were normal.  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 ~2 Mo. Pre-Sep
(20070605)	VA C&P ~5 Mo. Post-Sep
(20080128)	
Flexion (90 Normal)	44	45	
Extension (30)	25	20	
R Lat Flexion (30)	26	30	
L Lat Flexion (30)	35	30	
R Rotation (30)	18	20	
L Rotation (30)	38	20	
Combined (240)	186	165	
Comment			
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the lower back pain condition at 10%, coded 5239 (Spondylolisthesis or segmental instability).  The Board noted that the NARSUM and VA ROM measurements, the antalgic gait, and pain limited motion met criteria for a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lower back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right leg radiculopathy was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The right leg radiculopathy condition was profiled, forwarded as failing to meet retention standards by the MEB, and implicated in the commander’s statement.  The Board also noted that 4 months after separation the CI underwent spinal surgery for grade 3 spondylolisthesis causing right lower extremity weakness and paresthesia down to foot. All were reviewed and considered by the Board.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the right left radiculopathy contended condition favors its recommendation as an additionally unfitting condition for disability rating.  It meets the VASRD §4.71a criteria for a 10% rating, coded 8520 (mild incomplete paralysis of the sciatic nerve).  

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 pain was likely operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the lower back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  In the matter of the contended right leg radiculopathy condition, the Board agreed that it was unfitting and recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  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	
Lower Back Pain 	5239	20%	
Right leg Radiculopathy	8520	10%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, 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 XXXXXXXXXXXXXXXXXXXXXX, AR20160000211 (PD201400472)

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 30% 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 30% 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