RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04259
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071226

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E2, Military Policeman, medically separated for “chronic low back pain,” with a disability rating of 10%.  

CI CONTENTION:  “Please review all conditions.”  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 based on 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 – 20071106	VARD - 20071003	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	10%	Degenerative Disc Disease L2 and L3 and Central Canal Stenosis	5237	40%	20070618	
Hypertension	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent spinal fusion surgery (L2-3 and L3-4) in November 2005 for degenerative disc disease (DDD).  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain secondary to degenerative disc disease, status post L2-L4 instrumented fusion” for PEB adjudication.  

At a VA Compensation & Pension (C&P) evaluation dated 2 January 2007, (12 months pre-separation) no physical examination was accomplished because the CI refused to perform the movements required for evaluation.  

During the MEB examination (recorded on DD Forms 2807 and 2808) dated 26 March 2007, (9 months pre-separation), the examiner noted decreased range of motion (ROM), tenderness without spasm, and abnormal curvature; provocative tests for nerve root irritation were bilaterally positive.  Radiographic studies indicated rearward displacement of L3 onto the L4 vertebrae (retrolisthesis), a wedge deformity of the L1 vertebra, and degenerative changes (bone spurs and sclerosis).  On 27 March 2007, the CI was evaluated by a neurosurgeon.  Reflexes and motor function were reported as intact.  Provocative tests for nerve root irritation were negative, gait was within normal limits, and “minimal” lumbar muscle spasm was documented.  At the time of the physical therapy (PT) appointment 4 days later, the examiner recorded flexion to 10 degrees (normal 90) and combined ROM at 60 degrees (normal 240) with measurement unchanged over 3 repetitions and all movements limited by pain.  The CI continued treatment for his condition and had a procedure (radiofrequency ablation of nerve roots) on 15 June 20047 to abolish pain.  

At a second VA C&P evaluation on 18 June 2007, (6 months pre-separation), the CI reported low back pain with no radiating pain in the lower extremities.  His employer had made accommodation for his condition with an ergonomic work station that facilitated movement from a seated position to standing.  The CI reported use of assistive devices to pick items up from the floor and used a cane on occasion.  He denied being prescribed bed rest by a physician in the previous year.  On physical examination, the CI would not forward flex more than 5 degrees, and could extend rearward approximately 10 degrees.  Spasm was objectively observed and pain was reported by the CI.  Strength and sensation were intact, but reflexes were not elicited at the knees or Achilles tendons.  Provocative maneuvers for nerve root impingement (radiculopathy) were negative.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the low back pain 10% coded 5241 (spinal fusion), citing tenderness with limitation of motion due to pain rather than from mechanical block.  The VA rated the back 40% coded 5237 (lumbosacral strain), based on both VA C&P examinations described above (12 and 6 months pre-separation, respectively) citing forward flexion of 30 degrees or less.  The Board considered the evidence for a higher than 10% rating.  Members noted that the PEB discounted the PT ROM evaluation due to limitations from pain rather than mechanical block.  There were no other examinations in evidence stating such limitations; therefore the Board determined the service PT and VA ROM measurements were equivalent for rating purposes and agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 pain, coded 5241.  

Contended PEB Condition:  Hypertension.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended hypertension, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140917, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011494, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize 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 re-characterization 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,

Enclosure