RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01307
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050817

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The “spinal issues” have not improved.  He also requested review of an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 -20050721	VARD - 20060110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Degenerative Disc Disease, Lumbar Spine S/P L4-L5, S1	5242	20%	20050929	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic low back condition began in March 2003 after a hard combat jump landing.  He initially he felt a pinch in his back and had pain the following day.  The pain worsened over the next year to the point that he could not get out of bed, and he was subsequently medically evacuated in February 2004.  Lumbar spine X-rays on 3 February 2004 showed very minimal spondylosis with no subluxation or destructive bone lesion, and an MRI on 5 February 2004 revealed disc herniations at three contiguous levels, with the largest at L4-L5.  After conservative treatment, which included an epidural steroid injection, failed to relieve his pain, the CI underwent surgery with L4-L5 laminectomies, partial L4-L5 and L5-S1 discectomies, and bilateral L4-L5 foraminotomies on 18 June 2004.  After a fall on 14 August 2004, an MRI was performed on 1 September 2004 and showed status post laminectomies at L4 and L5, disc bulges at L3-4, L4-5, and L5-S1, superimposed disc protrusions at L4-L5 and L5-S1 levels, and epidural tissue primarily posteriorly and extending to the right side at both L4-L5 and L5-S1 levels.  

At a neurosurgical evaluation in November 2004, the CI had lumbar muscle spasms and range of motion (ROM) was significantly limited with flexion at 30 degrees (normal 90), “minimal” extension, and “side flexion and rotation no more than 50%.”  He declined further surgery stating that he felt the same as before surgery.  In April 2005, he reported intermittent right leg weakness, but electromyogram and nerve conduction tests were normal. 

The 20 May 2005 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of constant lower back pain rated at 7-8/10, and worsened by standing greater than 15 minutes, walking more than 200 yards, bending, stooping, or any strenuous physical activity.  No bowel or bladder dysfunction was reported.  Physical examination revealed normal gait, reflexes, strength, and sensation.  Measured ROM, in degrees, showed forward flexion to 45, extension to 28 (normal 30), and right and left lateral bending to 30 (normal).  Tenderness was noted along the lower portion of the lumbar surgical scar and right sacroiliac joint area.  

During the 2 June 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months before separation, the CI reported herniated discs.  Physical examination showed positive straight leg raising (to determine nerve root irritation) on the right, but negative on the left.  Deep tendon reflexes were normal bilaterally as was strength in the legs and feet.  Forward flexion was to 30 degrees with a combined ROM of 180 degrees (normal 240). Physical therapy thoracolumbar ROM measurements for the MEB on 15 July 2005, 1 month prior to separation, were recorded as “T12/L1 flexion 30, 28, 25 degrees” and “L5/S1 flexion 10, 7, 5 degrees.” 

At an initial VA examination on 9 September 2005, less than a month after separation, “back” flexion was to 30 degrees and extension to 10 degrees.  Neurologic evaluation demonstrated normal motor and sensory functions.  

At the 29 September 2005 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported constant pain which limited standing to 15 minutes and walking to half a block.  He did not have flare-ups or incapacitating episodes and was not taking medication.   Physical examination revealed an “unremarkable” gait, no spinal tenderness, and normal deep tendon reflexes.  Measured ROM demonstrated forward flexion to 70 degrees and a combined ROM of 165 degrees; repetition did not limit motion due to pain, fatigue, weakness or lack of endurance.  

At a VA examination on 3 January 2006, less than 5 months after separation, the CI had mild lumbar paraspinal tenderness without spasms, but was able to forward flex his spine only to about 10 degrees.  At a VA neurosurgery visit on 17 January 2006, a discogram was positive at L5-S1 and less so at L4-L5.  A CT scan on 3 February 2006 showed a grade 3 annular tear at L3-L4 and grade 5 annular tears at L4-L5 and L5-S1 intervertebral discs.  An L5/S1 discectomy and fusion were recommended on 28 March 2006, and a transforaminal interbody fusion was performed on 10 April 2006 for L5/S1 spondylolisthesis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness and pain limiting motion.  The VA rated the lumbar spine degenerative disc disease, 20%, coded 5242 (degenerative arthritis of the spine), citing forward flexion “greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees.”

The panel majority agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the neurosurgical, 2 June 2005 MEB, and 29 September 2005 and 3 January 2006 VA examinations.  The panel did note that physical therapy measurements were not in compliance with the VASRD and there were other measurements greater than 30 degrees including the NARSUM and C&P examinations that were somewhat less probative than the MEB and VA examinations shortly after separation.  Nevertheless, imaging findings supported the overall clinical status around the time of separation.  Furthermore, the CI was recommended to have surgery prior to separation, but instead chose not to go forward until several months after separation.  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 low back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic low back condition, the panel majority recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71.  The single voter for dissent recommends modification to 20% and did not elect to submit a minority opinion.  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 Low Back Pain	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180010278, 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), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure