RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01184
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, UH-60 Helicopter Repairer, medically separated for “chronic back pain status post right diskectomy L5/S1 with radiculitis of left leg” with a disability rating of 10%.

CI CONTENTION:  “I was rated 100% with the VA in 2004 and haven’t worked due to service connected injury since discharge.”  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 - 20040522	VARD - 20060125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5243	10%	Degenerative Disc Disease Status Post Diskectomy	5243	40%	20050802	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

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 1998 after a helicopter crash.  Symptoms worsened during deployment.  Neurosurgery evaluation in the fall of 2003 showed a herniated disk at L5-S1 on the right, but the CI’s predominant pain complaints were on the left.  After further consultation, the CI underwent surgery with a right L5-S1 lumbar diskectomy on 06 November 2003.  The left sided pain persisted.  A 12 February 2004 MRI showed a small left intra foraminal disk protrusion at L4-L5 with associated foraminal narrowing and displacement of the nerve root.  The 13 February 2004 MEB Neurosurgery Consultation, 7 months prior to separation, included a review of the initial MRI and determined a more significant bulge was on the right, one level below where the CI was hurting.  The CI continued to have pain on the left with a grinding sensation and nothing on the right.  He felt the wrong level was operated on as well as the wrong side.  The consultation reported complaints of left low back pain, positive straight leg raising (test for radiculopathy) and flexion pain to the left lower extremity.  Reflexes were normal and motor strength had no deficit.  

The 10 March 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of low back pain with radiation down the left leg to the knee.  The pain was constant and when exacerbated, took 3 or 4 days to return to “normal” level of pain.  Precipitating factors included lifting, activities and bending.  The CI reported that his condition was getting worse.  He was unable to perform the duties of his MOS but could type and use the keyboard, do administrative activities and conduct inventories.  Physical examination reflected the findings from the 30 January 2004 physical therapy examination, 7 months prior to separation and 3 months after surgery.  They showed an equal and well balanced gait with pain into left proximal gluteal muscle during the swing phase of gait.  Seated straight leg raise reproduced low back and gluteal pain.  Deep tendon reflexes were normal without motor strength deficit.  There was positive straight leg raise testing and flexion pain into the left lower extremity.  Range of motion (ROM) testing showed flexion of 13 degrees (normal 90) with painful motion, side bending to the right of 5 degrees (normal 30) and to the left of 10 degrees (normal 30), with extension to 5 degrees (normal 30).  Combined ROM could not be determined due to a lack of rotation measurements.  The examiner noted that trunk ROM was limited due to discomfort and post-surgical changes.   

At the 2 August 2005 VA Compensation and Pension (C&P) evaluation, 11 months after separation, the CI reported low back pain with flare-ups aggravated by too much walking (up to 100 yards) or sitting in the wrong position.  Walking was limited, painful and required a cane.  He had some difficulty with showering due to his limited ability to bend.  The examiner recorded that he was “unemployed and unemployable at the present time.”  Physical examination showed an unsteady gait with use of cane, but spinal contour was normal.  The CI could heel-to-toe and tandem walk.  Spinal tenderness was present with a positive straight leg raise test but no muscle weakness and intact sensation.  He had some difficulty voiding but whether that was related to his back condition was uncertain.  ROM testing showed flexion of 20 degrees and combined ROM of 100 degrees (normal 240) with pain.  Repetitive ROM was painful but did not result in additional loss of motion.  Pain was the major functional impact and DeLuca was positive.  

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 “radiculitis of the left leg and spinal motion limitations due to pain alone (not mechanical factors).  No radiculopathy, spasm or deformity.  Health records confirm back tenderness.”  The VA rated the back condition 40%, coded 5243, based on the C&P examination 11 months after separation, citing limited motion. 

The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the physical therapy and VA examinations.  There was no evidence of ankylosis of the spine to achieve a higher rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  Although the CI may have experienced radiating pain from the left lower extremity, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  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 20160929, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment 

AR20170018493, 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), 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