RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-01572
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050608

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E5, Medical Equipment Repair Specialist, medically separated for “low back pain” with a disability rating of 10%.  

CI CONTENTION:  The condition continues to worsen.  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 - 20050504	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5241	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA 	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent decompressive laminectomy and fusion surgery in August 2004 for degenerative disc disease.  The 25 October 2004 MEB NARSUM examination, 8 months prior to separation, noted limitations in walking, running and lifting greater than 25 pounds.  He also required a back brace.  On examination, there was spinal tenderness.  Thoracolumbar range of motion (ROM) was flexion to 15 degrees (normal 90) and combined ROM was 100 degrees (normal 240); pain-limited motion was present.  An MEB physical therapy examination was performed on 8 March 2005, 3 months before separation.  The examination referenced the aforementioned MEB NARSUM ROM findings and confirmed painful motion.  The 25 April 2005 MEB Neurology examination, 2 months before separation, revealed a normal stance and posture.  Straight leg raise testing for radiculopathy was negative.  Electromyography testing on 20 April 2005 revealed a mild L5 nerve root distribution deficit; otherwise the study was normal.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain and spinal tenderness.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the MEB NARSUM examination and referenced by the MEB physical therapy 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 back condition, coded 5241.

BOARD FINDINGS:  In the matter of the back condition, the panel 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 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	
Low Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170218, w/atchs
Exhibit B.  Service Treatment Record

AR20180007951, 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 you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure