RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01673
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040728

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

CI CONTENTION:  “The VA found me to be high disability rating due to physical ability limitation.”  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 - 20040323	VARD - 20050124	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post Discectomy and Subsequent Fusion	5241	10%	Status Post Lumbar Spine Fixation , Spinal Stimulator Implant and Intervertebral Disc Syndrome Involving L4-5 Nerve Segments	5243	40%	20041123	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a discectomy in November 2001 but continued to have persistent pain in his legs post-surgery.  Further evaluation and work-up culminated in a posterior spinal fusion in March 2002.  Electrodiagnostic studies on 3 December 2003 were negative for radiculopathy.  During an 18 June 2003 pain clinic visit, 14 months prior to separation, the CI reported significant, continuous back pain exacerbated by any activity and associated with stiffness and sharp pains radiating down the left leg as far as the big toe.  Physical examination showed muscle spasms, guarding and marked lumbar curvature. 
The 25 November 2003 MEB NARSUM examination, 8 months prior to separation, noted CI complaints of constant, severe low back pain with radiation down the posterior left leg, and decreased sensation on the left foot plantar and lateral aspects.  Any strenuous activity caused exacerbations.  There were no focal weakness complaints and he denied bowel or bladder incontinence with no decreased sensation in the groin area.  On examination, he had tenderness and mild spasm.  Motor strength was normal with some decreased sensation, and Achilles and patellar reflexes were 2+ and symmetric bilaterally. The 16 December MEB examination (recorded on DD Forms 2807-1 and 2808) noted decreased ROM with “lean to left.”

At the 18 February 2004 MEB physical therapy (PT) evaluation, 5 months before separation,  active range of motion (ROM) was recorded using a bubble inclinometer.  Measurements in degrees, and with repetitive motion, were:  forward flexion to 25 (normal 90), extension to 10 (normal 30), right and left lateral flexion to 10 (normal 30), right rotation to 20 (normal 30), and left rotation to 15; with combined ROM of 90 (normal 240).  All motion was limited by pain. 

At the 23 November 2004 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI complained of constant pain traveling down the left leg ad exacerbated by activity, sitting and standing.  He also reported incapacitating episodes occurring up to 4 times per month, however, prescribed bedrest was not documented.  Physical examination showed muscle spasm in the L1-L5 region but no tenderness.  ROM was decreased due to pain, fatigue, weakness, lack of endurance, and incoordination.  Flexion was to 30 degrees and extension to 10 degrees, both with pain.  There were signs of intervertebral disc syndrome with left ankle and great toe dorsiflexion weakness, numbness and L4-5 paresthesia; reflexes were normal.  X-rays showed degenerative changes with evidence of surgical fixation with a spinal stimulator implant.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10%, coded 5241 (spinal fusion), citing range of motion limited by pain, with localized tenderness.  The VA rated the chronic back pain condition 40%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 4 months after separation, citing thoracolumbar spine forward flexion of 30 degrees or less.  Based on the MEB PT and C&P ROM measurements, panel members agreed that a 40% rating, but no higher, was justified for limitation of flexion (thoracolumbar spine 30 degrees or less).  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 5241.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 40%, coded 5241 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, 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 Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002659, 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