RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04271
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Light Wheel Vehicle Mechanic, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  The CI contends that his back condition has continued to worsen and that he now has leg weakness and lost movement of his lower extremity.  He also contends that while going through the medical board, he had a number of other conditions that were rated by the VA, but not by the service.  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 - 20070723	VARD - 20080206	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Chronic Back Pain

	5241	10%	Degenerative Disc Disease of Lumbar Spine; L3-L4 Laminectomy and L5-S 1 Spinal Fusion with Bone Graft and Instrumentation Status, with Residuals of Pain; Lumbar Myositis	5299-5243	40%	20071210	
			Radiculopathy of Left Lower Extremity	8599-8520	10%	20071210	
			Radiculopathy of Left Lower Extremity	8599-8520	10%	20071210	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery, laminectomy and fusion, in August 2006 for degenerative disc disease and spondylolisthesis.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “low back pain status-post laminectomy with posterior spinal fusion, instrumentation, and bone graft” for PEB adjudication.  At the MEB examination (recorded on the DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) dated 14 December 2006, 11 months prior to separation, the physical exam showed paravertebral muscle tenderness and that the CI was not doing any movement of the spine to prevent injury and pain.  Straight leg testing was positive on the right at 40 degrees and left at 45 degrees.  At the MEB NARSUM examination on 28 December 2006, 11 months prior to separation, the CI reported that he required a cane to walk and that he was “unable to stand for more than ten minutes, sit [for] more than 15 minutes…” or do “repetitive movements” with his back.  His back pain was exacerbated by prolonged standing, sitting and walking.  Physical examination showed that the CI used a cane to walk, but had a normal gait.  He had tenderness to palpation of the lumbar spine.  His motor strength, reflexes, and sensation were all normal.  The examiner noted that the CI had “instructions from the orthopedic spine surgeon [to not] do any thoracolumbar flexion, extension, lateral rotation or lateral bending.”  Therefore, a range of motion (ROM) study was not accomplished.  His motor strength, reflexes, and sensation were all normal.  The electromyographic examination, dated 3 January 2007, showed “mild membrane irritability at some muscles innervated by the L5-S1 roots bilaterally, but no active denervation potentials, otherwise, normal study.”  The MEB ROM study conducted on 12 April 2007, 7 months before separation, showed that the CI had significant painful limitation of motion of flexion to 15 degrees (normal 90 degrees) and extension to 0 degrees (normal 30 degrees); however, the examiner noted that the CI tolerated the sitting position well.  The CI was also noted to have tenderness in the lumbar region.  

At the VA Compensation and Pension (C&P) examination on 10 December 2007, performed a month after separation, the CI reported daily lower back pain with “radiation of electricity to left gluteal area.”  During flare-ups his ability to perform mechanic work, lift, carry, reach, and sit, stand or walk for prolonged periods of time was limited.  Physical examination showed mild limp and tenderness to palpation of the lumbar spine.  The CI had significant painful limitation of motion to 5 degrees of flexion and extension; however, the examiner noted that he could flex his hips up to 90 degrees in the sitting position to put on his shoes.  His motor strength and reflexes were normal, but he had decreased pinprick sensation on the L5 dermatome.  

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 “limitation of thoracolumbar motion due to pain,” with likely application of AR 635-40, and “localized tenderness.”  The VA rated the back condition 40% coded 5299-5243 (analogous to intervertebral disc syndrome), based on the VA C&P examination a month after separation, citing “forward flexion of the thoracolumbar spine of 30 degrees or less.”  The VA also rated “radiculopathy of the right lower extremity” at 10%, coded 8599-8520 (analogous to mild incomplete paralysis of the sciatic nerve) and “radiculopathy of the left lower extremity” at 10%, coded 8599-8520.  The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees reported on the MEB and VA examinations.  Although the CI’s commander reported that the CI was on convalescent leave for 19 months, there was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

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 and gait, and the sensory changes did not affect his job.  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 recommended a disability rating of 40% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140808, 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 XXXXXXXXXX, AR20160011618 (PD201404271)

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 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