RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01360
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Unit Supply Sergeant, medically separated for “low back pain,” with a disability rating of 20%.

CI CONTENTION:  The CI contends a higher rating by the VA.   The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited 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 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 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:  

SERVICE PEB - 20081022	VARD - 20090303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5242	20%	Mechanical Low Back Pain with Mild Degenerative Changes w/o Spondylolisthesis or Spondylolysis	5237-5242	10%	20090105	
Right Knee Patellofemoral Pain Syndrome	Not Unfitting	Right Knee Patellofemoral Joint Syndrome	5099-5024	10%	20090105	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in 2002 without injury or trauma.  Radiographic studies on the lumbar spine on 29 May 2002 were normal.  A magnetic resonance imaging study on 27 February 2006 was normal except for relative straightening of lordosis (at times indicative of muscular pain or spasm).  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “mechanical low back pain” for PEB adjudication.  The MEB NARSUM examination on 3 October 2008 (4 months prior to separation) noted complaints of constant pain in the midline of the back, but with no radiculopathy, numbness or weakness of his lower extremities.  The pain was worse with standing or sitting for long periods and with flexion.  It was rated 7-8/10 and increased 10/10 with activity.  Physical examination showed thoracolumbar guarding, and decreased ROM to 50 degrees of flexion (normal 90) and 25 degrees of extension (normal. The gait, lower extremity strength, sensation, and reflexes were normal.  X-rays (showed mild degenerative changes without spondylolithiasis or spondylosis.  There was no tenderness or muscle spasm.  At the VA Compensation and Pension (C&P) examination in January 2009, performed a month before separation, the CI reported stiffness and numbness with pain in the lower back 3 times per week and lasted for 2 to 48 hours.  The pain was described as burning, aching and sharp and rated at 7-8/10.  Physical examination noted a normal gait, spinal contour reflexes, and strength. Maneuvers for radicular signs were negative and there was no evidence of paraspinal muscle spasm or tenderness.  Range-of-motion (ROM) was normal except for painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5299-5242 code (degenerative arthritis of the spine, citing flexion of 53 degrees.   The VA assigned a 10% rating using an analogous 5237-5242 code (lumbosacral strain-degenerative arthritis of the spine) based on the VA C&P examination a month before separation, citing full ROM and stating the Deluca issue was taken into consideration.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the MEB/PT examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Contended PEB Conditions.  The right knee condition was profiled U3 and failed retention standards.  The commander’s statement commented on the CI’s inability to take a physical fitness test, lift objects, and perform in a field environment.  The right knee condition was reviewed and considered by the Board.  The records document knee complaints for several years that failed to respond to PT, injections, and medications.  The NARSUM examination noted mild joint line tenderness and patella grind with limited painful motion of 0-121 degrees.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of right knee condition favors its recommendation as an additionally unfitting condition for disability rating.  Board members agreed the right knee condition meets the VASRD §4.71a criteria for a 10% rating IAW §4.59 and §4.40.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5299-5242 	20%	
Right Knee	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140317, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160006743 (PD201401360)

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