RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00581
BRANCH OF SERVICE:  aRMY 	SEPARATION DATE:  20040927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Motor Transport Operator, medically separated for “chronic subjective back pain” with a disability rating of 10%.   

CI CONTENTION:  The CI’s back condition continues to worsen and negatively impacts daily activities.  Additionally, the CI contended depression, which was not identified by the MEB or PEB.  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 - 20040520	VARD - 20050225	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain…	5299-5237	10%	Residuals, Status Post Microdiscectomy at L4-5, due to Lumbar Disc Herniation…	5238	100%	20041201	
			Radiculopathy, Right Lower Extremity	8520	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Chronic Subjective 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 mid-2003 (this is variously recorded as beginning in June, August, September, and October) after lifting and loading wood onto a truck (normal duties for him).  His pain persisted despite medications and duty limitations.  An MRI on 29 December 2003 showed a herniated disc (HNP) at L4-5 with nerve root impingement on the right, L5>L4.  A second HNP was noted at L3-4.  He was then referred to physical therapy, but his pain persisted.  He was then entered into the MEB process.  Electrodiagnostic (EDX) studies on 2 February 2004 demonstrated evidence of a mild bilateral posterior tibial neuropathy, but no generalized neuropathy, myopathy, or radiculopathy.  The next day in primary care, he had a normal gait, but transfers of position were painful.  At a neurosurgery appointment on 18 February 2004, the CI complained of continued back pain with minor complaints of radiating pain, predominantly to the right leg.  The physical examination revealed tenderness to palpation and reduced range of motion (ROM) of the back which was not quantified.  The neurological examination was normal as was the gait.  Atrophy was absent.  

The MEB NARSUM examination was dated 18 March 2004, 6 months prior to separation.  The CI reported constant pain which radiated to the right leg and left hip.  Incontinence was absent.  Physical examination showed the CI walked with an antalgic gait and used a cane to ambulate.  Radiculopathy testing produced pain down the right leg.  The ROM measurements showed the CI forward flexed to 20 degrees (normal 90) with a combined ROM of 95 degrees (normal 240).  Objective signs of painful motion were present.  During the MEB examination (recorded on DD Forms 2807-1 and 2808) performed on 17 May 2004, 4 months prior to separation, the examiner noted the CI had a normal neurological examination.  The gait was noted to be positive, but this was not elaborated further and it is unclear what this meant.  Additionally, the CI reported pain with multiple maneuvers which were not be expected to elicit pain based on the known pathology.  

On 12 August 2004, at a primary care clinic appointment (2 months prior to separation), examination showed the CI walked with a slight limp, had tenderness to palpation and objective signs of pain on movement.  Additionally, the examiner noted paraspinal muscle spasm bilaterally.  Magnetic resonance imaging (MRI) studies on 16 August 2004, showed broad-based disc bulges at L3-4, L4-5 and L5-S1.  Nerve root impingement was present at L4-5 and L3-4.  

At the VA Compensation and Pension (C&P) evaluation performed on 1 December 2004, 2 months after separation, the CI reported continued back pain that radiated to the right leg.  He denied incapacitation.  On physical examination, the CI walked with an antalgic gait and used a cane.  Position changes were painful and accompanied by objective signs of pain.  His muscles were “tight” and straightening of the normal lordotic curve was recorded.  The reflexes were diminished on the right.  The CI was unable to heel/toe walk or squat due to pain.  The ROM measurements showed forward flexion to 10 degrees and a combined ROM of 30 degrees with painful motion present.  The CI was subsequently evaluated in neurosurgery and on 11 February 2005, the CI underwent a L4-5 microdiskectomy with a revision on 17 February 2005.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded analogous to 5237 (lumbosacral strain), citing ROM limited by pain.  Three days after the revision surgery, the VA rated the back condition 100%, coded 5238 (spinal stenosis), based on the C&P examination 2 months after separation, citing an unstable condition with severe disability post-surgery.  The VA additionally rated a right lower extremity radiculopathy 10%, coded 8520 (incomplete paralysis of the sciatic nerve).  The permanent rating for the back was later decreased to 40% after the post-surgery convalescence IAW VASRD §4.30.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) as reported on both the NARSUM and VA examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that an additional disability rating was not justified on this basis.  The panel also noted that the code 5243 (intervertebral disc syndrome) better described the clinical picture and is recommended even though it does not provide a rating advantage to the CI.  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 5243.  

BOARD FINDINGS:  In the matter of the chronic subjective back pain condition, the panel unanimously recommends a disability rating of 40%, coded 5243 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 Subjective Back Pain	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170016270, 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