RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00507
BRANCH OF SERVICE:  Army	BOARD DATE:  20141203
SEPARATION DATE:  20061030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SGT/E5 (19D/Cavalry Scout) medically separated for a chronic low back condition.  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 L3/H3 and referred for a Medical Evaluation Board (MEB).  The chronic low back pain (LBP) condition, characterized as “mechanical low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (bilateral knee pain and bilateral low-frequency hearing loss) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain,” as unfitting, rated at 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining two conditions were determined to be not unfitting.  The US Army Physical Disability Agency issued an administrative correction that did not change the disposition or rating.  The CI made no appeals and was medically separated.

CI CONTENTION:  “V.A. rated me 100% disabled + unemployable.  Social Security found me disabled.”

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 chronic low back condition is addressed below.  Additionally, the bilateral knee pain and bilateral low-frequency hearing loss identified as not unfitting by the PEB, possibly contended by the CI, is also within the DoDI 6040.44 defined purview of the Board.  Any conditions 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 VASRD standards, based on ratable severity at the time of separation.

RATING COMPARISON:

PDA Admin Correction– Dated 20061010	VA - (12 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	DDD, Lumbar Spine, w/ LOM	5299-5243	40%	20071029	
			Radiculopathy, LLE, Lumbar Disc Disease Associated w/ DDD, Lumbar Spine w/ LOM	8520	20%	20071029	
Bilateral Knee Condition	Not Unfitting	Patellofemoral Syndrome, Right Knee	5299-5260	10%	20071009	
		Patellofemoral Syndrome, Right Knee	5299-5260	10%	20071009	
Bilateral Low-Frequency Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	*NSC	
Other x 1 (Not in Scope)	Other x 6	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20080129 (most proximate to date of separation)
*Not Service Connected

ANALYSIS SUMMARY:

Chronic Low Back Condition.  The narrative summary (NARSUM) dated 15 August 2006 noted the CI had not passed the standard Army Physical Fitness Test (APFT) since 2003 due to LBP.  The CI reported a history of multiple minor traumas with subsequent back pain since 2001.  An magnetic resonance imaging (MRI) of the lumbar spine in January 2006 reportedly revealed L5-S1 broad base disk bulge touching the anterior thecal sac and the left L5 nerve root with left neural foraminal narrowing at L5-S1 (MRI not among records).  Additional findings were bilateral L5 spondylolysis with Grade I spondylolisthesis of L5 on S1.  In February and March 2002, the CI did report numbness or tingling in the lower extremity without functional implication.  There was no evidence of any incapacitating episodes related to his back and he was not considered a surgical candidate.  Having failed conservative treatment he was placed on a permanent profile.  There were only three treatment entries among the record in evidence; two recorded in 2002, and one in 2001.  However, the NARSUM noted the CI had received treatment at the local VA (dates not recorded).

At the MEB NARSUM examination, the CI reported back and knee pain; intensity, duration, aggravating and alleviating factors were not recorded.  However, his profile limited all physical activities except walking at own pace and distance.  He was limited to ten pounds of lifting and 10 minutes of prolonged standing.  Functional limitations recorded “no APFT” and the need for ambulatory assistance with cane or crutches.  Physical examination recorded antalgic gait (he used a cane), and he was able to heel and toe walk with some difficulty.  Examination of the spine demonstrated marked tenderness throughout, with range-of-motion (ROM) flexion to 20 degrees and extension to 5 degrees; measurements performed with goniometer.  The physician noted the ROM was limited by pain.  Waddell signs was positive, 5/5 (pain elicited on all maneuvers, and presence of overreaction to testing) and flip test (similar to straight leg test; test for sciatic nerve pain) was positive.  The physician diagnosed mechanical LBP associated with degenerative disk disease (DDD), L5-S1 and spondylolysis and Grade I spondylolisthesis of L5 on S1.  The evidence suggested the initial VA Compensation and Pension examination occurred 12 months after separation (exam not among records).  The VARD indicated findings of that examination were consistent with the NARSUM.  The lumbar ROM on flexion was 15 degrees with pain “at 0 and ending at 15;” and extension was “50” (likely 5) degrees with pain ending at 5 degrees.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% code 5237 for painful motion (rated for tenderness).  The PEB noted the CI had experienced multiple back traumas related to training then left active duty.  When he mobilized in May 2005 he received a profile for continued back pain that had worsened over the years.  The PEB opined the ROM flexion was limited by pain alone.  However flexion was measure by goniometer at 20 degrees.  The VA rated the condition of DDD at 40%, coded analogously 5299-5243 for flexion of 15 degrees.  A 40% disability rating under the spine codes requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 30 degrees.  The Board reviewed the record in evidence and noted the absence of treatment entries with recorded ROM prior to the NARSUM.  Both examinations reflected a 40% evaluation.  The Board is required to evaluate ROM based on the VARSD’s directive.  The VA rates limitation of motion due to pain at the point in which the examinee can no longer continue the motion.  Board members acknowledged the back condition may have worsened secondary to other factors while the CI was not on active duty; however, he was allowed to return to active duty with a profile.  All Board members agreed the 40% disability rating was supported.  The Board also considered code 5243 (intervertebral disc syndrome); however, this code did not support a higher rating since there was no evidence of incapacitating episodes of at least 6 weeks duration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40%, coded 5237 for the low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral knee and hearing loss conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The knee was not profiled or specifically implicated in the commander’s statement and was not judged to fail retention standards.  Although the hearing loss condition was profiled, the condition was not implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the bilateral knee condition and the hearing loss condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

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 mechanical LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended bilateral knee pain and hearing loss conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.

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:

UNFITTING CONDITION	VASRD CODE	RATING	
Mechanical Low Back Pain	5237	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140104, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150007090 (PD201400507)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA