RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01370
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20080909

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

CI CONTENTION:  “Upon exit from the service and examination and evaluation by the Department of Veterans Affairs, I have significant disabilities and the VA assigned a combined rating of 100% for multiple 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 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 - 20080722	VARD - 20081110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Thoracolumbar Tenosynovitis	5237	40%	20081026	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in May 2004 after wearing military gear with no record of injury or trauma.  He was demobilized in November 2005 after completing a deployment but was limited by his LBP during weekend Guard drills.  Magnetic resonance imaging (MRI) studies in November 2007 found multi-level degenerative disk disease without central canal stenosis or foraminal narrowing.  At the fitness for duty examination on 27 February 2008, 7 months before separation, the CI reported longstanding LBP aggravated by bending over to pick up objects.  Physical examination showed a nonantalgic gait with mild tenderness over the lower back.  Spasm and guarding were not reported and range of motion (ROM) measurements were not provided.  

The 9 May 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant discomfort in the lower back, which increased with repeated bending and lifting, prolonged standing, sitting, walking, climbing, or bearing weight.  The CI reported flares of back pain that occurred once a month and lasted 2-3 weeks.  During these flares he claimed to be debilitated and essentially on bedrest for the first week, able to move around slowly with the use of canes and walkers the second week, and moving better and closer to normal the third week.  Physical examination showed a nonantalgic gait, tenderness over the lower lumbar spine and no no spasms.  Thoracolumbar ROM measurements, after repetition, were 80 degrees of flexion (normal 90) and combined ROM of 190 degrees (normal 240), limited by pain.  

At the 3 September 2008 VA primary care visit, the week prior to separation, the CI complained of “exquisite pain” after scrubbing his bathtub, feeling a pop in his back and being unable to move for about an hour; his son had transported and accompanied him for medical care.  The examiner was unable to complete a full examination due to the CI’s extreme pain and inability to move from his wheelchair.  He could not lift his legs against applied pressure and was referred to the local emergency department.  

At the 26 October 2008 VA Compensation & Pension (C&P) evaluation, 2 months after separation, the CI reported constant, moderate, aching LBP precipitated by bending over, lifting, and carrying heavy objects.  He reported flare-ups that occurred every 3-4 months lasting for 1-2 days.  Physical examination showed muscle spasm and tenderness severe enough to cause an abnormal gait.  Active thoracolumbar ROM measurements were flexion of 30 degrees (normal 90) and combined ROM of 80 degrees (normal 240) with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5299-5237 (analogous to lumbosacral strain), citing painful motion.  The VA rated the LBP condition 40%, coded 5237 (lumbosacral strain), based on the C&P evaluation, citing moderate flare-ups every 3-4 months and significant loss of motion including 30 degrees of flexion.  Members agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported at the C&P examination.  The panel noted that the limitation of thoracolumbar motion recorded in the MEB NARSUM examination met the threshold for a 10% rating, consistent with the PEB findings.  However, the record showed an exacerbation the week prior to separation limiting ambulation.  The C&P evaluation was after this pre-separation exacerbation, more proximate to separation, and was more detailed; therefore, the panel placed greater probative value on this examination.  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 LBP condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel recommends a disability rating of 40%, coded 5237 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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170310, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180004946, 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 and to the counsel your listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure