RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02133
BRANCH OF SERVICE:  Army	BOARD DATE:  20150430
SEPARATION DATE:  20050408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Chemical Operations Specialist) medically separated for chronic back pain.  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 with degenerative disc disease at L4-L5, L5-S1, status post L4-L5 diskectomy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 10%, citing rating criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “PLEASE CONSIDER ALL CONDITIONS.”

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 20050202	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	DDD, Lumbosacral Spine	5010-5243	10%	20050706	
			Left Side Sciatica	8720	NSC	20050706	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20050823 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain.  Treatment records evidence that the CI presented with low back pain (LBP) radiating to the coccyx (mid-buttock) in 2003.  The provisional diagnoses were low back strain versus disc pathology.  The CI was treated with anti-inflammatory medications and chiropractic care.  Despite conservative and chiropractic management, the CI continued to report worsening low back and gluteal pain.  A magnetic resonance imaging study dated 6 January 2004 revealed a large disc extrusion at the lumbosacral junction with the left nerve root compression, moderate canal stenosis, and obliterated the left exit.  There was also a left disc protrusion at the lumbar 4-5 level which resulted in right foramina encroachment and mild to moderate canal stenosis.  On 8 April 2004 the CI underwent a lumbosacral junction microdiskectomy.  A physical therapy note dated 8 September 2004 documented that the CI’s leg pain resolved after the surgery, but he continued to report LBP.  At that time he was running 1-2 miles, 3 times per week at his own pace without problems.  The therapist documented limited active range-of-motion (ROM) due to continued discomfort and pain.  

The narrative summary (NARSUM) noteD that the CI “first experienced back pain after a rough landing during airborne school...” At the time of the NARSUM the CI reported daily LBP radiating to the left leg.  The physical examination documented positive radicular pain testing in the left leg and pain with thoracolumbar flexion and bilateral rotation.  The NARSUM referenced physical therapy active ROM of 30 degrees of flexion; 20 degrees extension; and 30 degrees of lateral bending and rotation bilaterally.  A diagnosis of chronic LBP with degenerative disc disease (DDD) at L4-L5, L5-S, status post L4-L5 discectomy was rendered.

At the VA Compensation and Pension exam performed 3 months after separation, the CI reported continued LBP with radiation down the left leg to the knee. The pain worsened intermittently with walking greater than one mile.  The physical examination revealed a well healed left lumbar surgical scar; moderate left lumbar paraspinous muscle spasm and tenderness to palpation; and positive radicular pain testing in the left leg.  Sensation and other neurologic testing were normal in both feet.  A diagnosis of DDD probably secondary to trauma was rendered.

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)	PT ~3 Mo. Pre-Sep
(cited by MEB)
(20050107) p.42	VA C&P ~3 Mo. Post-Sep
(20050706) p.71	
Flexion (90 Normal)	 30,30,30	Not measured	
Extension (30)	10,10,10	Not measured	
R Lat Flexion (30)	30,30,30	Not measured	
L Lat Flexion (30)	30,30,30	Not measured	
R Rotation (30)	30,30,30	Not measured	
L Rotation (30)	30,30,30	Not measured	
Combined (240)	160	#	
Comment	Painful motion,	Lumbar spasms, tenderness	
§4.71a Rating	40%	10-20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP condition as unfitting and rated it based on flexion to 60 degrees and extension to 30 degrees without spasm or tenderness; coded 5243 (intervertebral disc disease).  The VA coded the condition 5010-5243 (degenerative arthritis due to trauma- intervertebral disc disease).  The PEB and VA rated the condition at 10%.  The Board considered whether the evidence supported a higher than 10% rating.  Although the CI was able to run at own pace and distance and perform the Army physical fitness test, the Board noted that he was prescribed narcotic pain medication for daily use and additional dosing as needed for pain.  The VA examination most proximate to separation demonstrated lumbar paraspinous muscle spasm and tenderness.  The Board noted that multiple physical therapy notes documented limited active ROM secondary to pain and a MEB goniometric measurement of active flexion to 30 degrees.  The Board determined that the preponderance of the evidence did not support an unfitting left leg radiculopathy and therefore additional ratings could not be recommended.  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 chronic 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 chronic LBP condition, the Board by a majority vote recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  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	
Chronic Low Back Pain 	5243	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140416, 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 XXXXXXXXXXXXXXXXX, AR20150018730 (PD201402133)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA