RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02041
BRANCH OF SERVICE:  Army	BOARD DATE:  20141021
SEPARATION DATE:  20041130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Automated Logistics Specialist) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back pain condition, characterized as “degenerative disk disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The informal PEB adjudicated “low back pain” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI reqeusted all conditions be considered.

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 LBP condition is addressed below and, no additional conditions are 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.

RATING COMPARISON:

Service IPEB – Dated 20040922	VA - (3 Yrs. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back	5239	10%	Degenerative Disc Disease	5242	20%	20070905	
Other x0 (Not in Scope)	Other x1	20070905	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20071030 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Chronic Low Back Pain Condition:  While deployed in January 2003, the CI developed LBP sometime while moving supplies as he did not have an acute event at the onset on his pain.  He was evaluated and treated by orthopedics, physical therapy and received chiropractic care along with numerous medications.  His symptoms continued and he underwent a magnetic resonance imaging (MRI) study performed in February 2004.  That MRI revealed a bilateral L5 spondylolysis (a defect in a section of the vertebral) with a Grade 1 anterolisthesis (mild “slippage” of one vertebral body in front of another).  The documentation supports that approximately a year prior to separation the CI’s back pain began to worsen as evidenced by a physical therapy (PT) range-of-motion (ROM) measurement of 40 degrees flexion (normal 90) in November 2003 and a subsequent PT ROM of 17 degrees in May 2004 (6 months prior to separation).  Additionally, 3.5 months prior to separation, a physical medicine evaluation stated that the CI’s “Flex and ext. lacks approx. 80% of normal range.”  Continued treatment did not result in pain reduction and the CI was referred into the Disability Evaluation System.  The narrative summary (NARSUM) prepared 3 months prior to separation, noted that the CI had nerve conduction studies that revealed no evidence of an abnormal muscular or nervous system process bilaterally (the primary document was not available for review).  His pain was described as located in his lumbar spine area with a constant sharp character and was 3/10 severity.  Twice a week he reported worsening in severity to 8-10/10 with prolonged sitting and exertional activity worsened his symptoms.  For the physical exam portion, the NARSUM referred to the DD Form 2808.  The pertinent findings were minimal flexion and extension, positive antalgic gait and a positive straight leg raise, bilaterally.  There were no ROM measurements documented.  A physical therapy exam was documented 6 months prior to separation that documented poor posture with painful motion.  The average ROM measurements were 15 degrees of forward flexion with a combined ROM of 45 degrees.  A VA Compensation and Pension (C&P) exam was performed 3 years after separation, and resulted in a VA rating of 20%.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5239, spondylolisthesis or segmental instability and rated it 10% citing, “range of motion seems to be limited by pain.”  The VA applied code 5242, degenerative arthritis of the spine and rated it 20% based on the ROM data documented in the C&P exam.  The evidence supports that the CI did have an anatomical cause for his back pain, bilateral spondylolysis with spondylolisthesis.  The Board noted that the PEB did not use the measurements documented by the physical therapist for its rating.  The Board also noted that the C&P exam performed almost 3 years after separation documented an improved thoracolumbar ROM which most likely represented post-separation improvement of his back pain condition.  Board consensus was that the PT exam performed 6 months prior to separation was the most probative exam for its rating recommendation.  That exam documented ROM data that is consistent with a 40% rating under the General Rating Formula for Diseases and Injuries of the Spine.  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 LBP 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 LBP condition, the Board, by a majority vote, recommends a disability rating of 40%, coded 5239 IAW VASRD §4.71a.  The single voter of dissent elected not to submit a minority opinion.  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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5239	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, 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, AR20150006306 (PD201402041)

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