RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02486
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Systems Mechanic, medically separated for “low back pain” with disability rating of 20%.

CI CONTENTION:  The CI contends as a result of his disability, he has not been able to work.  The 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 - 20031106	VARD - 20040706	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Due to L5 –S1 Degenerative Disc Disease	5299-5237	20%	Degenerative Disc Disease Lumbar Spine	5245	40%	20040123	
			Headaches Associated with Degenerative Disc Lumbar Spine	8100	10%	20040123	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in November 2001 after he slipped and fell inside of a track vehicle. Despite conservative treatment, the CI reported worsening low back pain (LBP) and radiating pain to both lower extremities (LEs).  Magnetic resonance imaging in 3 February 2003, 12 months before separation, showed degenerative disc disease causing foraminal stenosis at L5-S1, greater on the left than the right.  
Electrodiagnostic studies performed on 20 March 2003, 11 months before separation, were normal.  The 17 April 2003 orthopedic consult, 10 months before separation, indicated a diagnosis of a herniated disc at L5-S1 with left S1 radiculopathy and recommended epidural steroid injections and consideration of surgical discectomy.  A 23 April 2003 neurosurgical consult, 10 months before separation, did not recommend surgery, noting normal neurologic findings.  

At the May 2005 MEB examination (recorded on DD Forms 2807 and 2808), 9 months prior to separation, the CI reported recurrent LBP.  Physical examination showed tenderness to palpation (TTP) of the spine with normal spinal contours.  There was decreased range of motion (ROM) described as “unable to touch toes” and decreased left lower extremity strength graded 2/5 and positive straight leg raise testing (SLR) to elicit radicular symptoms on the right.  

In June and July 2003 the CI was treated in the emergency room twice for acute exacerbation of LBP radiating to the left LE, without numbness or weakness and placed on 48 hours quarters each time.  

The 1 August 2003 MEB NARSUM examination, 6 months prior to separation, noted complaints of severe LBP and left LE pain.  Medications included narcotic pain medication (Percocet), which was taken on a regular basis.  Physical examination showed negative SLR on the right, positive on the left at 50 degrees.  Decreased sensation to light touch in the left S1 distribution was noted and strength was normal bilaterally.  The MEB NARSUM examiner documented ROM as “he has 20 degrees of flexion, bending left and right and extension is 10 degrees.  He has pain with forward flexion.”  The MEB NARSUM examiner, who was the orthopedic surgeon, indicated that it was unlikely that the CI would improve without surgery, but he was reluctant to recommend surgery due to the CI’s age and the possibility that the CI would be unable to return to full duty after surgery and in the long term be worse off.  

The 30 October 2003 physical therapy evaluation, 3 months before separation, measured ROM for the MEB and thoracolumbar flexion was 35 degrees (normal 90) after three repetitions (55, 50, 35 degrees).  The examination noted an antalgic gait.  The CI was able to heel and toe walk.  The CI removed his shoes without bending over and when he sat, he shifted his weight to his right.  

At the 23 January 2004 VA Compensation and Pension (C&P) Spine examination, 1 month before separation, the CI reported constant pain, weakness, stiffness, fatigability, and lack of endurance.  The CI reported bilateral LE radiculopathy.  There were no bowel or bladder problems.  The CI indicated the pain was getting gradually and progressively worse.  The CI was using codeine (narcotic pain medication) and Valium (muscle relaxant) to manage his pain.  He reported three to four incapacitating episodes in the past year noted as being seen in the ER and placed on quarters, the last episode occurred in October 2003, 3 to 4 months before separation.  Physical examination showed a normal gait.  There was TTP over the lumbar region.  Back ROM was flexion of 30 degrees and combined ROM of 160 degrees (normal 240), with painful motion noted.  Lower extremity strength, sensation, and reflexes were normal and SLR was negative.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5299-5237 (lumbosacral or cervical spine pain), citing forward flexion limited to 55 degrees.  The VA rated the back condition 40% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 1 month before separation, citing forward flexion of the thoracolumbar spine 30 degrees or less.  

The panel agreed that a 40% rating, was justified for limitation of flexion (not greater than 30 degrees) reported on the pre-separation VA examination.  
At the PT evaluation, 3 months before separation, ROM was better.  However, the ROM findings at the two examinations were very close in value.  The PT ROM did not overcome VASRD 4.3 (reasonable doubt) as flexion worsened with three repetitions.  The VA examination was the most proximate exam to separation and panel consensus was that this exam best represented the CI’s condition at time of separation.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  The evidence showed the CI had IVDS (disc disease causing back pain and sciatica) and at the VA exam the CI reported that he experienced incapacitating episodes that required treatment and bed rest prescribed by a physician.  However, the emergency room visits in record he referenced noted only periods of quarters, which is not necessarily equivalent to medically prescribed bed rest.  Additionally, there was no evidence that the total duration of these episodes was at least 6 weeks to support the next higher rating.  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 5299-5242.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 40%, coded 5299-5242 IAW VASRD §4.71a.  There are 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 Back Pain, Due to L5 –S1 Degenerative Disc Disease	5243	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151013, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013255, 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