RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02752
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O5, Transportation Officer, medically for “chronic subjective back pain, status post L4-5 fusion, without neurologic abnormality,” with a disability rating of 10%.

CI CONTENTION: The CI contends he was given a higher rating for his conditions 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 - 20041209	VARD - 20051228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Degenerative Changes, Lumbar Spine, Status Post Decompression and Fusion, L4-S1, with Radiculopathy	5242	40%	20051013	
Right Shoulder DJD	Not Unfitting 
	Impingement Syndrome, Right Shoulder With Mild Degenerative Changes (Dominant)	5201	20%	20051013	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease status post Fusion.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery (L4-L5 fusion) in December 1994.  His back pain increased in June 2003 shortly after he was activated.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and so he was referred for MEB.  The MEB forwarded “lumbar degenerative disc” for PEB adjudication.  The MEB NARSUM examination on 23 March 2004 (10 months prior to separation) noted complaints of “low back pain that [had] progressively gotten worse since…activation.”  On examination, lower extremity strength, sensation and reflexes were normal.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 25 March 2004, 10 months prior to separation, the CI reported numbness and tingling in left leg.  Physical examination showed a non-antalgic gait, mild tenderness to palpation over the paraspinal muscles, and thoracolumbar flexion was 20 degrees with pain (normal is 90 degrees).  His lower extremity strength, sensation, and reflexes were normal.  At the EMG/NCS study performed by physical medicine on 1 December 2005, 2 months prior to separation, the CI reported “numbness and tingling down the left leg.”  Examination showed “evidence for left L4-L5 radiculopathy” and significant limitation of motion as indicated in the chart above.  At the orthopedic surgery evaluation on 6 December 2004, the examiner opined that the CI’s “lumbar ROM restrictions [were] a result of his previous low back injury and subsequent surgery versus limitation as a result of unwillingness to move due to pain.”  The examination revealed significant limitation of motion as indicated in the chart above.  At the VA Compensation and Pension (C&P) examination on 22 June 2005, performed 4 months after separation, the CI reported daily back pain which was worse with standing or strenuous work.  He also reported that he had numbness.  The examiner recorded that the CI had “had no incapacitating episodes” and “no increased limitations with flare-ups or repetitive motion.” There was also no “incoordination or evidence of excess fatigability.”  Physical examination showed “some straightening of lordosis.”  He had significantly decreased ROM as indicated in the chart above.  There was mildly painful motion.  Although he had a normal gait, “he could barely stand on his heels and toes to walk.”  He had a “positive straight leg raise on the left at 20 degrees.”  His reflexes were absent in the knees, but normal in the ankles.  He had good strength and normal sensation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5241 (spinal fusion), citing painful limitation of motion.  The VA rated the back condition 40% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 4 months after separation, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on all examinations.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 back condition, coded 5241.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right shoulder was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The right shoulder was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 right shoulder and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended right shoulder condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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	
Lumbar Degenerative Disc Disease status post Fusion	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

'JUL 1 9 2016

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 Mr. AR20160007641  (PD201402752)

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 re­ characterize 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 wi!I 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 ( ) OVA