RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03961
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Transportation Management Coordinator, medically separated for “low back pain status post fusion L5-S1 without neurologic abnormality …,” with a  disability rating of 10%.

CI CONTENTION:  The CI contends the VA gave him a higher back rating.  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 - 20050809	VARD - 20060405	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5241	10%	Status Post Diskectomy…	5242-5243	40%	20060103	
			Scar, Lumbar Spine	7804	0%	20060103	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain condition began in March 2001 after falling on steps in the barracks.  The CI received epidural injections for his lower back 2 March 2001.  Radiographic (X-ray) studies 7 March 2003 showed no evidence of fracture, destructive bony lesions or significant degenerative disk disease.  He received epidural injections of his lower back again 19 March 2001.  Magnetic resonance imaging studies 30 May 2002 showed herniated disc at L5-S1 with narrowing of the neuroforamina (space through which the spinal nerve root passes).  Disc fusion and discectomy surgery of L5-S1 was performed 9 September 2002.  Radiographic (X-ray) studies 21 January 2003 showed no evidence of any acute abnormality.  There were metallic plates and nails over the L5-S1 area in satisfactory alignment.  Following surgery, the CI continued to have back pain with activity and was “unable to wear an IBAS or Kevlar.”  Further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic lower back pain s/p L5-S1 fusion” for PEB adjudication.

The range of motion (ROM) examinations 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)	Family Care
~5 Mo. Pre-Sep	PT Exam
~3 Mo. Pre-Sep	MEB NARSUM Exam ~3 Mo. Pre-Sep	VA C&P General ~3 Mo. Post-Sep	VA C&P Spine
~10 Mo. Post-Sep	
Flexion (90 Normal)	30	45	45	25	80	
Combined (240)	>110 ; < 170	165	>150 ; < 200	165	220	
Comments:  Surgery ~36 Mo. Pre-Sep	Good heel & toe walk and reflexes; missing rotations and repetition	All ROM limited by pain	Pain with motion; missing lateral flexions and repetition	Pain with motion; tenderness	Pain throughout ROMs at extreme ranges	
§4.71a Rating	40%	20%	20%	40%	10%	

The MEB NARSUM examination on 20 July 2005 (3 months prior to separation) noted complaints of a 3-year history of low back pain which the CI described as “achy,” and that his condition had been stable over the past 2 years.  The pain was moderate and symptoms were associated with lying down.  His pain was aggravated by standing for long periods, bending forward, and lifting.  He stated he was not taking medication but was undergoing physical therapy with minimal improvement.  Physical exam showed normal spinal contour, normal reflexes, normal strength, normal sensation, and examination maneuvers for radicular signs were negative.  There was no swelling or redness throughout his back.  The CI had a vertical 7 cm scar over his lumbar region over his spinous process and a 3 cm diagonal scar just lateral to his midline scar on his left sacral region.  Thoracolumbar ROM was pain limited as recorded in the above chart.

At the VA Compensation and Pension (C&P) examination on 3 January 2006, performed 3 months after separation, the CI reported no pain flare ups at the time to his thoracolumbar back.  When he had pain it rated 5/10 scale and at its worst 8/10 in intensity.  Over the past 12 months he had one episode which lasted overnight before he was able to obtain medical assistance.  Physical exam showed normal reflexes and strength, gait and spinal contour were normal, normal sensation and examination maneuvers for radicular signs were negative.  There was a well-healed scar 8 cm long that stretched from L4 to S1.  There was a painful, vertical, well-healed scar 3 cm long over the posterior iliac crest.  There was tenderness in the lowest left lumbar area.  There was pain-limited thoracolumbar ROM as charted above.  The examiner stated that with repetition there was increased pain with loss of about 15 degrees flexion and extension.

A second VA C&P examination was conducted on 9 August 2006 (10 months after separation) because the CI disagreed with the original findings of his VA claim.  During this exam the CI reported constant back pain with intermittent radiating pain to both legs to the knees.  The pain was aggravated by prolonged standing, sitting, bending and lifting more than 20 lbs.  The pain was relieved by medication (Vicodin), stretching, and lying down.  The pain affected his ability to perform impact activities and he could no longer work on automobiles due to the required bending.  He had 3 flare ups a year that lasted 3-4 days that included increased stiffness and pain that radiated to his legs.  Physical exam showed normal gait and spinal contour, normal reflexes, normal strength, and examination maneuvers for radicular signs were negative.  There was mild paraspinal tension and the surgical scar was well healed and not painful.  There was limited thoracolumbar ROM associated with pain at the extreme of all ranges as recorded in the chart.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10% coded 5241 (spinal fusion), citing painful limitation of motion, without neurologic abnormality.  The VA rated the chronic low back pain condition 40% coded 5242-5243 (degenerative arthritis of the spine and intervertebral disc syndrome respectively), based on the VA C&P examination 3 months after separation, citing limitation of forward flexion to 25 degrees associated with pain after repetition.  The VA also rated the surgical scar at 0% coded 7804.  The Board deliberated on the probative value of the exams in evidence and the totality of the record.  The PT and MEB NARSUM exams (3 months before separation) documented forward flexion of 45 degrees while the prior service evaluation at 5 months pre-separation and the 3 month post-separation VA exam documented flexion no greater than 30 degrees.  The remote VA exam was considered less remote from separation and had diminished probative value.  The more remote VA exam was considered likely post-separation improvement.  The PT exam addressed repetitive motion with all planes of ROM included, but was ROM-only and had to be paired with the NARSUM and neurology exams to provide a comprehensive evaluation.  The proximate VA exam addressed repetitive motion with all planes of ROM included and provided a comprehensive back assessment by a single examiner.  Therefore the Board placed greater probative value on the proximate VA examination.  The Board agreed that a 40% rating, but no higher, was justified for limitation of flexion (forward flexion of the thoracolumbar spine 30 degrees or less) reported on the 3 January 2006, VA C&P exam.  Any impairment due to the surgical scar was considered under the unfitting back condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes, sensory testing and gait.  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 chronic low back condition, coded 5241.

BOARD FINDINGS:  In the matter of the chronic low back condition, the Board unanimously recommends a disability rating of 40%, coded 5241 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	
Chronic Low Back Pain	5241	40%	
COMBINED	40%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140822, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXX, AR20160009422 (PD201403961)

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 day suspense date]:

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