RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00862
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20041006

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Food Service Specialist, medically separated “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  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 - 20040507	VARD - 20041119	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain …	5243	10%	Herniated Nucleus Pulposus L5-S1	5243	40%	20040902	
	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in April 2001 following a motor vehicle accident.  Initial radiographic studies showed an intervertebral disc herniation at L5-S1.  The neurosurgeon recommended surgery, but the CI pursued conservative treatment.  Subsequent radiographic studies showed degenerative disc disease (DDD) with a disc protrusion at L5-S1 causing narrowing of the neuroforamina (space through which the spinal nerve root passes).  The CI was referred to a second neurosurgeon, and after examination, surgery was not recommended.  

At the 4 February 2004 physical therapy (PT) range of motion (ROM) study 8 months prior to separation was indicated as a ROM study of the lumbar spine.  Measurements showed the average measurement after three repetitions of 50 degrees of flexion and 115 degrees combined ROM.  Active ROM was equal to passive ROM, and painful motion was not addressed by the examiner.  

During the 5 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the CI reported that his bulging disc was causing his “left leg to go numb at times.”  The examiner noted that the CI’s pain was reported as 6/10 but rose to 7/10 in the evening.  Physical examination showed painful motion with forward flexion of 70 degrees (normal 90).  There were no other ROM measurements provided.  Straight leg raise testing (for radiating symptoms) was positive at 45 degrees bilaterally.  The neurologic evaluation was normal.  The 18 February 2004 MEB NARSUM examination, 8 months prior to separation, noted complaints of chronic low back pain with flares and interference with sleep, and muscle spasms.  The CI was taking narcotic pain medication and nortriptyline (for pain symptoms).  The examination quoted the findings of the above MEB and PT examinations.  Treatment notes in March, July and August 2017 indicated the CI continued to complain of low back pain with a continued requirement for narcotic pain medication.  The 26 April 2004 CI’s rebuttal memo to the MEB indicated that the CI was “unable to come off of a four-hour duty day,” had been using a TENS unit (electrical stimulator for pain control), had not performed his military duties since his injury occurred and did not anticipate improvement after getting out of the military.  

At the 2 September 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported pain in his lower back.  Physical examination showed normal gait, reflexes and sensation.  ROM measurements were 30 degrees of flexion (normal 90), 5 degrees of extension (normal 30).  Right and left lateral flexion (normal 30) measurements were both 10 degrees, but there were no rotation measurements.  The examiner noted that there was pain with flexion and that only one set of measurements was taken because of the pain in the CI’s lower back.  Straight leg raise testing was 60 degrees bilaterally (essentially negative for radicular signs).  The physician’s overall impression was “significant pain, lumbar spine, secondary to LS-S1 herniated nucleus pulposus.  It gives him a major amount of physical impairment.”  

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), citing pain at 70 degrees of flexion and no focal neurological deficits.  The VA rated the back condition 40%, coded 5243, based on the C&P examination 1 month before separation, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  

In assigning probative value to these disparate and incomplete ROM examinations (IAW VASRD §4.46 and Plate V), the panel noted that the PT ROM study indicated measurement of the lumbar spine rather than the thoracolumbar spine, the MEB examination was incomplete and only listed the flexion measurement, and the VA examination was consistent with a flare of back pain and was missing the rotation measurements.  Panel members agreed that although all of the examinations were incomplete, the VA examination was most complete and most proximate to separation and, therefore, held more probative value than the service examinations.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the VA examination.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  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 back 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 Low Back Pain …	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160919, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017103, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to recharacterize 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 recharacterization 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