RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00917
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20061201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Petroleum Supply Specialist, medically separated for “chronic back pain, status post L5-S1 discectomy and subsequent fusion with postoperative wound infection” with a disability rating of 10%.

CI CONTENTION:  “The condition has worsened since I got out of the military.”  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 - 20060830	VARD - 20061207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post L5-S1 Discectomy And Subsequent Fusion With Postoperative Wound Infection	5243-5241	10%	Status Post L5-S1 Surgery With Degenerative Disc Disease	5242	40%	20060913	
	COMBINED RATING OF ALL VA CONDITIONS:  80% 	

ANALYSIS SUMMARY:   

Chronic Back Pain, Status Post L5-S1 Discectomy and Subsequent Fusion with Postoperative Wound Infection.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent back surgery in October 2005 for lumbar stenosis and a herniated disc, followed by a lumbar fusion, in March 2006 for degenerative disc disease (DDD).  At the 21 December 2005 orthopedics appointment, the CI complained of significant low back pain.  Magnetic resonance imaging (MRI) results showed no specific lesion other than degenerative disc disease (DDD) at L5-S1.  The provider scheduled a lumbar fusion to be performed in March 2006.  One week after the CI’s spinal fusion, her surgical wound opened up secondary to an infection and the CI underwent surgical irrigation with repeat closure of the wound.  Post-operatively, the CI received IV antibiotics for 8 weeks due to developing vertebral osteomyelitis caused by the infection.  At the 10 May 2006 infectious disease clinic follow-up appointment, the CI complained of persistent pain, 4/10, and limitation of spinal movement due to the osteomyelitis of the lumbar spine.  There was no wound drainage noted.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 5 July 2006 (7 months prior to separation) recorded active flexion to 5 degrees (normal 90), extension to 10 degrees (normal 30), right lateral flexion to 10 degrees (normal 30), left lateral flexion to 15 degrees (normal 30), left rotation to 20 degrees (normal 30), and normal right rotation; all directions were limited by pain.  At the 19 July 2006 infectious disease appointment, examination revealed the lower back incision site as being fully healed with very slight tenderness about the area.  The examiner stated “vertebral osteomyelitis was clinically resolved since it had been one month from the last dose of [antibiotics].”  

The 15 August 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant low back pain, throbbing in nature with frequent muscle spasms.  The CI stated pain was aggravated by prolonged sitting, standing, and bending.  She had been treated with rest, activity modification, and profiling, aquatic therapy and pain medications without any improvement in her symptoms.  Physical examination revealed a well healed surgical scar with bilateral muscle spasm and paraspinal muscle tenderness.  Straight Leg Raise (SLR) testing and cross straight leg raise testing caused significant back pain.  Peripheral motor strength and sensation were intact.  X-rays indicated appropriately placed surgical hardware and no evidence of osteomyelitis.  Her pain was documented as being “mild to moderate” and “frequent to constant.”  

At the 13 September 2006 VA Compensation and Pension (C&P) evaluation, 3 months prior to separation, the CI reported 7/10 pain, weakness, stiffness, fatigue; and lack of endurance of the lumbar spine.  She endorsed difficulty navigating stairs, walking and running long distances, or standing stationary for extended lengths of time.  Physical examination revealed normal gait and posture.  Tenderness was present about the lumbar spine and surrounding musculature.  Lower extremity strength, sensation and reflexes were normal.  Thoracolumbar ROM measurements recorded active spinal flexion to 10 degrees, extension 10 degrees, right and left lateral flexion to 10 degrees each direction, right and left rotation to 15 degrees each direction with painful motion.  No change in ROM was detected during repetitive movement or when resistance was applied to the lumbar spine.  No additional limitation of joint function was quantified upon repeated use.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition at 10%, dual coded 5243-5241 (intervertebral disc syndrome and spinal fusion), citing ROM limited by pain, with localized tenderness.  The VA rated the chronic back condition at 40%, coded 5242 (degenerative arthritis of the spine), based upon the C&P examination 3 months prior to separation, citing limitation of forward flexion.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) as reported on the PT and VA examinations at 7 and 3 months prior to separation, respectively.  There was no documentation of intervertebral disc syndrome (IVDS) 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, status post L5-S1 discectomy and subsequent fusion with postoperative wound infection condition, coded 5241.  

BOARD FINDINGS:  In the matter of the chronic back pain, status post L5-S1 discectomy and subsequent fusion with postoperative wound infection 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 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, Status Post L5-S1 Discectomy And Subsequent Fusion with Postoperative Wound Infection	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, date 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment 

AR20180004837, 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