RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01505
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E7, Chemical Operations Specialist, medically separated for “chronic low back pain” and “left lower extremity radiculopathy,” with a combined disability rating of 20%.  

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 (VA), 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 - 20041028	VARD - 20050315	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5243	10%	DDD…	5243	40%	20041022	
LLE Radiculopathy	8520	10%	Left Radiculopathy	8620	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had surgery in 2001 for a chronic LBP condition.  It is not clear from the record if this was declared and cleared prior to activation on 16 January 2003.  The CI was deployed and reported aggravation of his chronic LBP, persistent after surgery, from the wear of protective equipment.  No specific injury or trauma was recorded.  He was seen in internal medicine on 21 July 2003 and treated with medications, physical therapy, and duty restrictions.  In physical therapy, signs of non-organic pain were present.  On 22 August 2003, an MRI showed a disc fragment in the L4-5 region impinging the right L-5 nerve root and a bulging disc at L5-S1 which contacted both nerve roots without frank impingement.  A nerve conduction study revealed chronic radiculopathy in the L5 region.  In orthopedics on 18 December 2003, the CI was thought to have left>right L5-S1 nerve root compression based on the physical examination and history.  On 9 January 2004, the CI was noted to have lumbar flexion of 60 degrees (normal) and extension of 5 degrees (normal is 30).  There was a sensory loss in the left lower extremity (LLE) in a non-dermatomal fashion (not due to radicular impingement).  The CI was given a steroid injection with some improvement in his symptoms.  

The 11 March 2004 MEB NARSUM examination, 8 months prior to separation, noted complaints of LBP and numbness in his left leg since surgery, aggravated by activity such as prolonged standing, sitting or walking.  The physical examination showed a positive bilateral straight leg raise test, with pain.  Tenderness was present over the left buttock and sacroiliac joint.  Four signs of non-organic pain were present.  Sensation was reduced over the posterior left leg from the hip to the knee.  Electrodiagnostic testing on 19 March 2004 showed evidence of a chronic left L5 radiculopathy.  The right side was not tested.  Range of motion (ROM) testing that day showed 20 degrees of flexion (90 is normal) and a combined ROM of 95 degrees (240 is normal).  The limitation was due to pain.  

At the 22 October 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported a 5 year history of LBP characterized as burning, aching, sharp and cramping.  The CI also noted pain with numbness and 10 episodes of incapacitation totaling 45 days over the past 12 months.  The panel did not find supporting evidence for this in the records available for review.  The CI admitted to losing two days of work in a week.  The physical examination showed an abnormal gait due to back pain.  The ROM showed 30 degrees of flexion and a combined ROM of 80 degrees.  The ROM was limited by pain, fatigue, weakness, and lack of endurance with pain as the major functional impairment.  Neither spasm nor tenderness were present.  There was no ankyloses of the spine and no intervertebral disc syndrome (IVDS).  The neurological examination was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5243 (intervertebral disc syndrome), citing thoracolumbar ROM limited by pain.  It also rated LLE radiculopathy at 10%, coded 8520 (mild incomplete paralysis of the sciatic nerve).  The VA rated the LBP condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 month before separation, citing 30 degrees of flexion with pain.  The radiculopathy was rated at 0%, coded 8620 (neuritis of the sciatic nerve) as the C&P neurological examination was normal.  The panel noted that the CI had four signs of non-organic pain on the PEB ROM measurements and that the history provided to the VA examiner was not supported by the STR.  It also noted that the lumbar flexion was normal 10 months prior to separation.  The panel did not find evidence in the record to explain the marked loss of motion over a few months.  However, the panel agreed that a 40% rating, was supported by the limitation of flexion as reported on the VA examination and in the physical therapy examination for the NARSUM even though the probative value for each was in question.  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 LBP condition, coded 5243.  

Left Lower Extremity Radiculopathy.  As noted above, the neurology examination by the VA was normal and was also the most proximate to separation.  The panel also observed that the neurological deficits were not consistent between examiners in the service treatment records.  A 0% rating is supported by the evidence.  

BOARD FINDINGS:  In the matter of the LBP condition, the panel unanimously recommends a disability rating of 40%, coded 5243, IAW VASRD §4.71a.  In the matter of the left lower radiculopathy condition, the panel unanimously recommends a disability rating of 0%, coded 8520, IAW VASRD §4.124a.  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	
Low Back Pain	5243	40%	
LLE Radiculopathy	8520	0%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161012, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180001631, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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