RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01157
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040427

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

CI CONTENTION:  “At the same time the VA gave me a rating of 60%.”  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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20040318	VARD - 20040520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Multilevel Degenerative Disc Disease of the Lumbar Spine	5242	40%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a long history of low back pain.  He aggravated his back condition during mobilization and while deployed to Iraq after heavy lifting.  He successfully completed his deployment and redeployed in August 2003, but remained a medical holdover.  

At a 13 August 2003 internal medicine clinic appointment, 9 months prior to separation, the CI reported low back pain.  Physical examination showed “50% back flexion” and bilateral low back tenderness.  At an 18 August 2003 physical therapy (PT) clinic visit, 8 months before separation, the CI reported a 5-year history of low back pain that was aggravated in Iraq.  Physical examination showed a normal gait and a mild slumped posture.  The examiner noted that trunk range of motion (ROM) had limited forward flexion and extension with pain at the end of range measurements; however, no specific ROM measurements were recorded.  

Radiographic (X-ray) studies on 19 August 2003 showed disk space narrowing involving L3-L4, L4-L5, and L5-S1 with small bony spurs extending anteriorly and posteriorly from the endplates.  There were also small bony spurs related to degenerative changes involving T10, T11, and T12 vertebral bodies.  Magnetic resonance imaging on 29 August 2003 showed multilevel disk disease with a small to medium disk herniation in the left paracentral aspect of L3-4 and medium sized left paracentral L5-S1 disk herniation with concurrent left intra-foraminal L5-S1 disk protrusion leading to narrowing of the left neuro-foramen.  At a 23 October 2003 neurosurgery clinic appointment, 6 months prior to separation, the back examination showed “no significant clinical findings.”  Imaging showed multiple bone spurs and bulging disks at the lumbar levels, but no radiculopathy.  The examiner opined that the only surgical intervention available was a multilevel fusion which he indicated was a poor option.  

At the 6 January 2004 primary care clinic examination, 4 months prior to separation, the CI reported daily dull back pain that felt like a “fist pushing into back,” aggravated by sitting too long and accompanied by numbness in the back of his thighs.  On examination, there was flexion of approximately 45 degrees (normal 90), lateral bending to the left of approximately 20 degrees and to the right 25 degrees (normal 30).  Rotation measurements were not recorded.  There was tenderness and spasm with a leaning and stiff gait.  The CI could walk on heels and could initiate toe walk, but would quickly lose his gait.  Straight leg raise testing was positive.  

The 2 February 2004 MEB NARSUM, 3 months prior to separation, noted complaints of low back pain that radiated posteriorly to his thighs.  Physical examination on 23 January 2004 (recorded on DD Forms 2807-1 and 2808), showed tenderness and a positive axial loading.  ROM measurements showed flexion of 20 degrees and combined ROM of 100 degrees (normal 240) with pain-limited motion.  Straight leg raise testing was positive.  Electrodiagnostic studies (NCS/EMG) on 20 February 2004 demonstrated evidence consistent with a left L3-4 radiculopathy, as well as a very mild L3 radiculopathy on the right.  

At the 12 March 2004 neurological examination, 2 months prior to separation, the CI could “slight heel walk” and “slight toe walk” bilaterally.  He had decreased left lower extremity strength and poor sensation to light touch on the dorsum of both feet.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain), citing multilevel degenerative disc disease without significant neurologic abnormality and thoracolumbar ROM limited by pain with localized tenderness.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the STR, citing forward flexion of 30 degrees or less.  The panel agreed that a 40% rating, but no higher, was justified for limitation of flexion not greater than 30 degrees as reported on the MEB NARSUM.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that 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 chronic back pain condition, coded 5242.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 40%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, 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	5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161004, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170019691, 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), 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