RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00707
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051202

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Common Ground Station Operator, medically separated for “chronic radiating low back pain” with a disability rating of 10%.  

CI CONTENTION:  No specific contention was made.  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 - 20050825	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Low Back Pain	5243	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Radiating Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in June 2004 after heavy lifting while deployed.  He was medically evacuated in November 2004 for back pain radiating into both buttocks.  A February 2005 MRI showed a disc bulge at L5-S1 contacting the L5 nerve root.  The CI was not considered a good surgical candidate.

At the time of the physical medicine clinic appointment on 22 February 2005, 10 months prior to separation, the CI reported LBP without complaints of radiculopathy.  Physical examination revealed normal motor strength and reflexes in the bilateral lower extremities.  The CI’s thoracolumbar range of motion (ROM) measurements after repetition were forward flexion of 30 degrees (normal 90) and combined ROM of 130 degrees with pain.  The diagnosis included right S1 radiculopathy and the physician increased the CI’s Neurontin (neuroactive medication).  

The 6 April 2005 MEB NARSUM examination, 8 months prior to separation, noted complaints of continued LBP with fair pain control at 3-4/10.  The CI was unable to perform any standard or modified aerobic conditioning activities without significant increases in his back pain.  He could not stand for more than 15 minutes, sit for more than an hour, or wear a rucksack, Kevlar helmet, or body armor.  Physical examination showed a normal gait and lumbar lordosis without spinal tenderness or pain on axial loading or extension.  There was no evidence of hip flexor tightness or hamstring tightness.  The CI had 5/5 motor strength and normal reflexes.  The examiner reiterated the ROM study from the physical medicine examination above.

During the 6 May 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported continued LBP.  Physical examination showed tenderness and taut bilateral lumbar paraspinal muscles.  Flexion was limited to 20 degrees secondary to pain, but the examination included no other ROM findings.  There were no neurovascular deficits.  There were no neurovascular deficits.  There was no VA examination proximate to separation in evidence though there was a VA examination dated 23 October 2007 which was outside the scope of the PDBR.  

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 [IVDS]), citing tenderness and pain-limited flexion, with likely application of AR 635-40, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not for joint pain resulting in loss of motion.  

Despite the fact that the 23-month post-separation VA examination only warranted a 10% rating for limitation of motion of the thoracolumbar spine, panel members noted no contravening evidence proximate to separation that showed the CI’s limitation of flexion was greater than the 30 degrees measured on the 10-month pre-separation physical medicine examination.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on all examinations proximate to separation.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that an additional disability rating was not justified on this basis.  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 low back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the back condition, the panel 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 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 Radiating Low Back Pain	5243	40%	

AR20190007507, 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 of40% 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.  Inquiries 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.