RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00118
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041119

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

CI CONTENTION:  The CI has continued and worsening low back and hip pain.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20041008	VARD - 20041211	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Degenerative Joint Disease, Thoracolumbar Spine	5242	40%	20041001	
Hip Pain	Not Unfitting	Degenerative Disease, Right Hip	5010-5252	0%	20041001	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in June 2003 after prolonged standing and in September 2003, while doing physical training, the CI noted a sudden onset of sharp back pain.  An MRI revealed a mild disc bulge at L4-5 and degenerative disc disease at L5-S1.  Electrodiagnostic testing (EMG/NCV) was normal and neurosurgery offered no surgical option.

At the 29 December 2003 physical therapy (PT) range of motion (ROM) evaluation showed forward flexion decreased by 25% (approximates 65-70 degrees, of normal 90 degrees) with motion in other planes as “full.”  There was tenderness.  The 12 January 2004 physical medicine examination noted an antalgic gait, non-tender back and flexion “to 5 inches from fingertips to floor due to pain” (equates to approximately 80 to 90 degrees).  The 13 January 2004 primary care examination recorded an antalgic gait with back tenderness, but did not record ROM.  The PT examination on 14 January 2004 recorded active ROM charted to approximately 50% of flexion, extension, and rotations with normal side bending (approximating flexion to 45 degrees and combined ROM of greater than 120 degrees).  

In August 2004, the CI had complaints of increasing back pain and spasms and between 23 August and 1 September the CI was on multiple episodes of quarters approximating 7 days total, then on light indoor duty restriction.  During the 1 September 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported worsening low back pain.  Physical examination revealed full ROM with no indication of pain with motion.

The 9 September 2004 MEB NARSUM examination, 2 months prior to separation, noted complaints of back pain and inability to perform duty related activities such as loading/unloading cargo and maintaining trucks.  Physical examination showed ability to heel and toe walk.  The ROM evaluation showed flexion of 80 degrees and combined ROM of 205 degrees (normal 240). 

At the 1 October 2004 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported constant 10/10 back pain elicited by physical activity.  She related incapacitating episodes as often as seven times per year, which lasted for 7 days and claimed “the past year” she had seven physician prescribed bedrest incidents of incapacitation for a total of 7 days.  Physical examination showed normal gait and posture with no spasms or tenderness.  The ROM evaluation showed flexion of 30 degrees and combined ROM of 135 degrees, with pain in all planes of movement.  The CI was not additionally limited by fatigue, weakness, lack of endurance or incoordination.  There was no ankylosis of the spine or signs of intervertebral disc syndrome.  

At the 16 November 2004 neurology examination, the CI complained of thoracic pain.  Thoracic spine MRI from September 2004 had noted a T9-T10 disc protrusion, which the neurologist indicated did not align with the CI’s symptoms; no physical examination was repeated that day.  

At the 27 April 2005 pain management consultation, 5 months after separation, the CI was in mild discomfort with a reported 5/10 pain level.  Physical examination documented lumbar muscle spasm and sacroiliac tenderness, but no ROMs were recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing combined thoracolumbar ROM of 205 degrees.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing 30 degrees of forward flexion with pain on motion.  

In assigning probative value to these somewhat conflicting examinations, the panel noted that the NARSUM measurements were consistent with other STR examinations by primary care, the MEB examiner and PT; however, the CI had evidence of multiple flares of spasm and increased back pain for symptoms that waxed and waned.  The panel noted that the thoracolumbar ROM recorded in the MEB NARSUM examination supported a 10% rating.  However, the pre-separation VA examination was more proximate to separation and more detailed.  Therefore the panel placed greater probative value on the VA examination.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees, as reported on the VA examination.  Although the CI complained of incapacitating episodes, the panel could find no objective evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant any higher rating under that alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5242.  

Contended Condition:  Right Hip Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  Although the contended condition was not profiled, it was implicated in the commander’s statement and judged to fail retention standards.  The CI had a history of right hip pain starting in March 2002 with subsequent diagnostic imaging evidence of a right hip stress injury and later findings of degenerative changes.  According to the 6 July 2004 family practice examination, the CI’s hip condition began after falling on the stairs with the subsequent symptom of hip “popping” that she could both feel and hear.  Physical examination showed decreased right hip ROM with tenderness.  

The MEB examination documented complaints of right hip pain, findings of right trochanteric tenderness and a negative FABER (no painful motion on flexion, abduction and external rotation).  Physical examination recorded right hip ROM of flexion 110 degrees (normal 125), extension 15 degrees (normal 30), abduction 25 degrees (normal 45) and adduction 20 degrees (normal 25), with no mention of painful motion.  There was tenderness over the greater trochanter with deep palpation.  FABER was negative.  The pre-separation C&P examination noted complaints of right hip pain made worse with overuse.  Physical examination documented full measured right hip ROM symmetric with the unaffected left hip and no evidence of painful motion.  Although there may have been overlap between radiation of the back pain and the hip pain, there was insufficient performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended right hip condition, the panel agrees it cannot recommend it for additional disability rating.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Med/Low Back Pain, without Neurologic or Electrodiagnostic Abnormality	5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170109, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180012733, 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

Enclosure