RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02412
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Network Switching System Operator/Maintainer, medically separated for “chronic back pain, due to lumbar degenerative disc disease, without neurologic abnormality,” with a disability rating of 10%.  

CI CONTENTION:  “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 - 20050920	VARD - 20070827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	10%	DDD, Thoracolumbar Spine	5242	0%	STR*	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	
*Failed to report to VA examination 20070802.  VARD - 20071120 increased 5242 to 40% based on exam dated 20071004.  

ANALYSIS SUMMARY:

Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain began in February 2001 which seemed to occur with strenuous activity and increased to daily pain during his deployment to Iraq in November 2003.  He underwent conservative therapy to include epidural steroid injections and pain reducing narcotics; surgery was not indicted.  Diagnostic imagining (MRI) revealed significant herniated discs, abutting nerve roots (L-5 compression), and severe spinal stenosis.  The MEB forwarded “herniated nucleus pulposus and chronic low back pain” for PEB adjudication.  

A physical therapy examination on 21 January 2005, 10 months before separation, noted complaints of worsening back pain with pain increasing after prolonged sitting.  Physical examination revealed lower spine tenderness and a positive straight leg raise (SLR – for radicular symptoms).  Range of motion (ROM) was flexion 20 degrees (normal 90), with painful motion.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 20 May 2005, 6 months prior to separation, the CI reported chronic back pain.  Physical examination revealed a normal gait, normal motor strength and a negative SLR.  There was paraspinal tenderness to palpation and lumbar spine limitation of movement; flexion, extension and lateral side bending with pain elicited on ROM.  A physical therapy examination on 10 August 2005, 3 months before separation, revealed ROM of flexion to 30 degrees and a combined ROM of 150 degrees (normal 240) with painful motion.  The MEB NARSUM examination on 11 August 2005, 3 months before separation, noted complaints of sharp-constant pain, worse with prolonged standing, lifting, sitting, physical activity and wearing pistol belt.  Physical examination revealed left paraspinal muscle tenderness, patella deep tendon reflexes 1+ bilaterally and positive SLR.  ROM was not addressed.  

The CI failed to report to his 2 August 2007 VA Compensation and Pension examination.  The subsequent 4 October 2007 evaluation, almost 2 years after separation, showed continued painful motion with flexion of 30 degrees and combined ROM of 95 degrees.  There was an abnormal gait, spasm and tenderness.  There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  

The 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)	PT
~10 Mos. Pre-Sep	PT
~10 Mos. Pre-Sep	PT 
~3 Mos. Pre-Sep	VA
~23 Mos. Post-Sep	
Flexion (90 Normal)	45	20	30	30	
Combined (240)	>125 ; <185	>70 ; <130	150	95	
Comments	Painful motion; tenderness	Painful motion; tenderness	Painful motion	Abnormal gait; spasm, tender; painful motion	
§4.71a Rating	20%	40%	40% (PEB 10%)	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing motion limited by pain and tenderness.  This was likely application of AR 635-40, in effect at the time, indicating rating for mechanical loss of motion, and not pain resulting in loss of motion.  The VA rated the back condition 0%, coded 5242, citing entitlement to a higher evaluation required evidence showing the current level of disability.  Following the C&P examination dated 4 October 2007, 23 months after separation, the VA increased the CI’s rating to 40%.  Subsequent additions of peripheral nerve ratings were adjudged to be post-separation worsening, and not indicative of the CI’s disability picture at separation.  

The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees reported by the two consecutive physical therapy examinations most proximate to separation, including the examination cited by the PEB.  There was no unfavorable ankylosis of the entire thoracolumbar spine or documentation of intervertebral disc syndrome with incapacitating episodes to support a higher rating.  Although the STR did reveal intermittent-positive SLR testing, the Board agreed there was no objective lower extremity motor weakness that interfered with satisfactory duty performance at separation; and, therefore no ratable peripheral nerve impairment to support an additional 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 back pain condition, coded 5299-5242 (degenerative arthritis of the spine).  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 40%, coded 5299-5242 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	5299-5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170004619, 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 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,
Enclosure