RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01738
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20041230

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

CI CONTENTION:  “The injury caused drop foot/[loss] of use below the knee in both legs as well as bowel and bladder conditions with need for use of permanent wheelchair as well as continued worsening of 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 - 20041126	VARD - 20050511	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Lumbosacral Spine Disc Disease, Status Post Disc Replacement Surgery	5243	40%	20050309	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L4-L5 and L5-S1 discectomy in June 2004 for herniated discs and degenerative disc disease (DDD).  The 22 October 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of low back pain, but the CI denied “any loss of bowel/bladder control or any radicular symptoms.”  He additionally endorsed the inability to run, walk greater than 100 feet, lift greater than 20 pounds, stand greater than 10 minutes, or to wear the flak vest, rucksack, LVE or Kevlar. “He is unable to perform push-ups, sit-ups or the aerobic event for the APFT.”  His physical examination (PE) revealed severe limitation of the lower spine noting forward flexion to 20 degrees (normal 90).  Bilateral lateral flexion was normal and rotary component of the spine was not addressed.  Spinal tenderness was present.  The examiner noted “pain in all directions” with range of motion (ROM) testing.  Motor strength, sensation, and reflexes were normal.  

The 15 November 2004 NARSUM addendum, 6 weeks prior to separation, revealed painful ROM measurements of 50 degrees of forward flexion and a combined ROM of 165 degrees.  The examiner noted that he used an inclinometer to assess ROM.  

At the 9 March 2005 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported back pain, decreased ROM and bilateral sciatica (right greater than left).  He described his back pain as excruciating and constant that ranged from 6-10/10 daily.  Precipitating factors included lifting heavy objects, squatting, and “bending back to pick things up.”  His PE revealed an abnormal gait and tenderness to palpation without significant thoracolumbar spasm.  ROM testing showed that there was pain starting at 20 degrees of forward flexion, 10 degrees of extension, 20 degrees of left or right lateral flexion, and 20 degrees of left or right rotation.  The combined ROM was 110 degrees (normal 240).  The examiner noted that he “did not push for the extent of the ROM due to patient’s significant pain,” but noted passive ROM measurements in his “c-folder with extremes at 60, 10, 30, 20, 35 and 40 respectively.” 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing diffuse spinal muscle tenderness with pain on movement whereas, the VA rated the back condition 40%, coded 5243 (intervertebral disc syndrome), based upon the C&P examination 2 months after separation, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  In assigning probative value to these somewhat conflicting examinations, the panel noted that the initial MEB ROM measurements for forward flexion of the thoracolumbar spine was consistent with the 2 month post-separation C&P examination.  The panel also noted the MEB NARSUM addendum examination provided ROM values for the thoracolumbar spine using an inclinometer, which was not in compliance with VASRD (§4.71a, Plate V) indicating the guidance to use a goniometer for ROM measurements.  Therefore the panel majority assigned more probative value to the original MEB and C&P ROM examinations.  The panel majority agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the MEB NARSUM and VA examinations.  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 majority recommends a disability rating of 40% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent recommends modification to 20% and elected not to submit a minority opinion.  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 Back Pain 	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161119, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170019808, 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