11RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01133
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  19980305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E7, Infantryman, medically separated from the Temporary Disability Retired List (TDRL) for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that his VA rating for his back condition was higher than his service rating and requests that all of his conditions be reviewed.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 – 19971107/20071004	VARD - 20070507	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Chronic Low Back Pain	5243	40%	10%	Residuals, Herniated Disc at L5-S1	5243-5237	60%	60%	
COMBINED RATING:  40% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The CI was placed on TDRL status effective 6 March 1998 and retroactively removed from TDRL status effective 6 March 2003.  Only the permanent disability rating adjudicated at TDRL removal is within the Scope of the Panel for review and rating recommendation.  In accordance with DoDI 6040.44, the Panel is required to recommend a rating IAW the VASRD in effect at the time of separation (TDRL removal).  The Panel noted that the 2003 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The Panel must correlate the above clinical data with the 2003 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome; based on incapacitating episodes); and 5295 (Lumbosacral strain).  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery on 3 occasions: L4-L5 discectomy in November 1990; repeat L4-L5 discectomy in July 1994; and L5-S1 discectomy in November 1996.  Following surgery, rehabilitation did not result in improvement sufficient to allow unrestricted duty.  The 24 May 1997 MEB NARSUM examination, 10 months prior to separation, the CI used a cane and had a painful gait.  Sensation was decreased in the right lower leg, but strength was intact.  The reflexes were symmetric (normal).  Motion was limited in all planes recorded.  On 6 March 1998, the CI was placed on the TDRL for the back condition at 40% impairment, coded 5295-5292.  

The record shows that the CI did not report for TDRL re-evaluations in 1998, 2000, and 2002.  In 2003, he was advised that he would be administratively removed from TDRL status.  The CI was again contacted on 20 July 2006 and advised that he had failed to show for the December 2002 examination.  The CI made contact (presumably with the USA Physical Disability Agency) on 21 August 2006 and stated that he was out of prison and ready for an evaluation.  

The first clinical note in evidence following TDRL placement is a primary care note dated 17 October 2005, which noted chronic LBP associated with slight right foot drop, numbness in the lateral right leg and foot, and bladder control issues.  An MRI report dated 12 January 2006 noted extensive scarring over the right L5 nerve root and S1 nerve root (side not specified).  The CI was placed on medications for chronic pain (gabapentin) and reported improvement at follow-up.  

At the 16 September 2006 VA Compensation and Pension (C&P) evaluation, 42 months after TDRL removal, the examiner recorded that the CI had shooting pain down both legs, right greater than left, with foot drop on the right leg.  The CI wore a back brace and ambulated with the help of a cane.  The physical examination showed severe tenderness and spasm of the lumbar spine region.  His ROM was decreased with flexion of 30 degrees.  The neurological exam revealed a foot drop on the right leg causing a (secondary) steppage gait.  He had a depressed ankle reflex on the right and diminished sensation on the right lower extremity.  Provocative testing for nerve root irritation was positive bilaterally.  

The CI was seen in neurology at the VA on 5 January 2007.  The CI reported constant LBP since the 3rd surgery which was in 1996.  He reported constant numbness in the right later leg (but not the thigh) since 1996 as well.  On examination, sensation was diminished over the right outer and later foot and leg.  Dorsiflexion (toes up) of the ankle was limited by pain.  The right knee (patellar reflex) was decreased.  Both ankle reflexes were absent.  Surgery was not recommended, but his medication dosage was increased.  

The next record in evidence was a neurosurgery evaluation on 17 July 2007.  This is also the first military clinical record in evidence since TDRL placement.  The examiner noted that there were no significant changes since he was last seen in 1999 (this visit was not found in evidence).  He was thought to have a failed back, epidural fibrosis (the scarring around the nerve roots), and lower extremity radiculopathy.  The panel noted that this neurosurgeon had also dictated the initial MEB NARSUM and addendum and that he was a member of the MEB.  

The CI was seen in physical therapy (PT) clinic appointment 2 days later on 19 July 2007, 52 months after TDRL removal, for range of motion (ROM) measurements.  He was noted to have a painful gait and to use a cane in his right hand.  The ROM was severely limited in all planes due to pain.  Flexion was limited to 10 degrees.  

The TDRL NARSUM examination was accomplished in orthopedics on 3 October 2007, 55 months after TDRL removal.  It was noted that his condition had not changed since his neurosurgery evaluation in November 1998 (not in evidence).  The physical examination showed severely restricted ROM in all planes due to pain and guarding.  Flexion was again limited to 10 degrees. The CI was wearing a lumbar corset and walked with a cane in his right hand.  There was no tenderness, abnormal spinal curvature, or spasm noted.  Provocative testing for nerve root irritation was positive on the right.  He had 4/5 strength motor groups right leg acting at ankle, foot and toes “which could be volitional.”  Thigh and calf circumference were equal bilaterally indicating no atrophy.  Both ankle jerks were absent, but the patellar reflexes were normal and symmetric.  Sensation was diminished over the right lateral leg and entire foot.  The examiner diagnosed a failed back and right sided sciatica despite appropriate care.  Review of the record did not show that the CI had been incapacitated from the LBP condition or prescribed bed rest after 1996.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing: “PEB rating of 10% more accurately reflects the current degree of severity of [the] condition.  The PEB considered [the] condition to have improved so as to be ratable at less than 30%.”  The VA rated the back condition 60%, analogously coded 5243-5237 (IVDS due to lumbosacral strain), noting that the CI was initially rated under the old spine rules (in effect prior t to 2002) and that these were more advantageous to the CI.  

The panel noted that there were no examinations proximate to separation.  Accordingly, it used the information from both TDRL placement and evaluations in 2006 and 2007 which bracket the actual time of adjudication.  The code 5292 supported a 40% rating for severe limitation of motion of the lumbar spine as shown on multiple examinations.  The panel also considered if a compensable radiculopathy was present and ratable.  Weakness of the right lower leg was recorded on multiple examinations as was foot drop.  However, the orthopedist noted that the weakness “could be volitional” and also noted that the calves and thighs were symmetric in circumference.  Foot drop was not recorded on this examination.  The medical officer observed that some decrease in circumference consistent with atrophy would be expected with long standing weakness and decreased use.  The reflexes were reduced, but this was not consistent between examinations.  No impairment was noted from the sensory loss.  The Formal PEB specifically noted that “the radiculopathy is not separately ratable as the Soldier has intact reflexes, sensation, and strength.”  This implies that the PEB did not find the condition separately unfitting.  The CI concurred with the FPEB adjudication.  The panel also noted that the code 5243 was not in effect at the time of TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5292.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 40%, coded 5292 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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 	5292	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170007445, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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 Reserve retirement.  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.
 
	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 XXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure