RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01766
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20051116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI asserts his back was worse than the Army thought it was when his Medical Evaluation Board (MEB) took place.   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 –20051011	VARD - 20060714	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5239	10%	DDD Lumbosacral Spine…	5243	40%	20060426	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Low Back Pain (LBP).  The service treatment record (STR) indicated that during 2003 and 2004 the CI had various direct and indirect injuries to his low back that had initially resulted in persistent non-radiating pain which later developed into radicular paresthesia (altered sensation) into both legs.  X-rays revealed degenerative disc disease (DDD) of the lumbosacral spine with vertebral slippage (without instability) at the lumbosacral junction.  Despite physical therapy and chiropractic manipulation, his symptoms remained and he was referred to a Medical Evaluation Board (MEB)P.  An orthopedic examination dated 21 April 2005 (7 months prior to separation) noted normal lower extremity strength, sensation, and motor control.  The Orthopedist specifically stated, “The [CI] moved easily in the room and got up and down from the examination table without difficulty.”  He had normal gait and coordination.  One day later (22 April 2005), a clinic note revealed a re-checking of the CI’s blood pressure after 5 minutes in a sitting position.     

At the MEB narrative summary (NARSUM) dated 20 September 2005 (2 months before separation) the CI endorsed a constant and sharp 7/10 LBP that radiates into both legs and is associated with numbness and tingling in the 3d and 4th toes of both feet.  His symptoms were aggravated by lifting and prolonged standing/sitting and improved with narcotic medication.  His physical examination (PE) revealed tenderness about the lumbar spine without spasms or neurological deficit.  Thoracolumbar range-of-motion (ROM) as documented on DD Form 2808 obtained on 15 August 2005 (3 months before separation) revealed significant limited and painful motion.  He performed a “good heel and toe walk” and demonstrated a normal (unaided) gait.

At the VA Compensation and Pension (C&P) General examination dated 26 April 2006 (5 months after separation) the CI reported constant and severe LBP with bilateral painful leg extension without sensory loss.  The PE revealed a rigid stance and a slowed gait.  The provider documented the following: “He [the CI] sits, stands and changes body position very, very slowly, gently lowering himself into the chair, and assumes a seated position with forward flexion of the lumbosacral spine at +90 degrees.  He stands, pushing himself up by extending his arms, and walks very slowly from the interview chair to the examining table, maintaining a very rigid posture”.  There were muscle spasms and extraordinary tenderness about the lumbosacral spine as well as limited ROM with flexion and extension.  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)	Military Exam for
DD 2808 and NARSUM
~3 Mo. Pre-Sep	VA C&P General
~5 Mo. Post-Sep	
Flexion (90 Normal)	(30) 28/30/28	10	
Extension (30)	(25) 25/25/25	5	
R Lat Flexion (30)	(20) 20/20/20	Declined…severe pain	
L Lat Flexion (30)	(30) 25/28/28		
R Rotation (30)	(30) 33/35/33		
L Rotation (30)	(30) 40/40/40		
Combined (240)	165	-	
Comment	tenderness; 
painful motion 	severe muscle spasm, tenderness; 
assisted ‘cane’ gait	
§4.71a Rating	40% (PEB 10%)	40% (VA 40%)	

The Board directed its attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized VASRD codes IAW §4.71a.  The PEB rated 10% under 5239 (spondylolisthesis) whereas the VA rated 40% under 5243 (degenerative arthritis) and cited painful and or limitation of motion for both exams.  

Although thoracolumbar ROM was significantly decreased 3 months prior to separation, the values reported by the VA examiner (5 months after separation) were significantly worse.  There was no record of recurrent injury or other development in explanation of the worsening impairment reflected by the VA measurements.  In the absence of incapacitating episodes, both of the above charted exams (within 12 months of separation) hold probative value (PV) and equate to a 40% impairment based upon ROM criteria.  However, in assigning PV to these differing examinations, the Board noted that: (1) the CI’s performance of maneuvering about the exam room ‘without difficulty’ coupled with exhibiting a normal gait without assistive device prior to separation remained in complete opposition to VA findings post-separation; and, (2) multiple examinations revealed the CI being able to achieve the sitting position (at least a 70 degree thoracolumbar flexion) for blood pressure checks and the VA examiner stated the evidence of greater than 90 degrees obtained when the CI assumed a sitting position.  Therefore, in light of these apparent inconsistencies, Board members struggled with either examination being assigned exclusive or the majority of PV in this case.

Board members extensively deliberated as to the degree of the CI’s overall impairment in light of apparent inconsistencies between the measured thoracolumbar ROM and observed actions of the CI during examinations.  The Board majority concluded that despite various comments from the medical providers, the ROM parameters both before and after separation remained sufficiently consistent as to support the same VASRD-defined impairment level.  Therefore, 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:  In the matter of the low back condition, the Board by a majority vote recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  The single voter of dissent recommended no change to the disability rating previously assigned and elected not to submit a minority opinion.  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 of his prior medical separation: 

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5243	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140415, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

AR20160008339, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to recharacterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

 
XXXXXXXXXXXXXXXXXXX
Deputy Assistant  Secretary of the Army 

Enclosure