[AR Number], XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

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 30% 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

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX	CASE:  PD-2017-02443
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080812

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, M1 Armor Crewman, medically separated for “chronic low back pain and right S1 radiculopathy” with a disability rating of 20%.  

CI CONTENTION:  “My low back injury has gotten much worse due to a failed back surgery from the VA.  The pain shooting down my right leg makes me walk with a cane and difficult to sit for more than a few minutes.”  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 - 20080424	VARD - 20090302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (LBP) and Right S1 Radiculopathy…	5243	20%	Lumbar Disc Disease	5237	40%	20081218	
			Right S1 Radiculopathy	8521	10%	20081218	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic LBP and Right S1 Radiculopathy.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP began in September 2005, when an IED blast knocked him into a motor vehicle.  As well as experiencing continued and intermittent back pain, this was associated with right lower extremity pain and numbness.  A detailed clinical work-up did reveal spinal abnormalities, but ultimately, his condition was determined not amenable to surgery.

A detailed pain management examination performed on 8 January 2008, 7 months prior to separation, documented full range of motion (ROM) with symmetric strength and normal muscle tone, and no atrophy or abnormal musculoskeletal system movements.  Gait was stable and the provider documented “no abnormalities” during the evaluation.

During an orthopedic visit on 9 January 2008, the provider noted the CI had an antalgic gait and used a cane.  There was bilateral lower extremity weakness (not quantified), and spinal ROM was recorded as “flexion of the lumbar spine of approximately 10 degrees and extension of 5 degrees which causes significant pain.”     

At a follow-up pain clinic visit on 16 January 2008, an antalgic gait was again noted without comment regarding any assistive device.  There was diffuse lumbosacral tenderness present, but peripheral reflexes and sensation were intact and normal.     

During the 22 February 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months before separation, the CI reported LBP with numbness, tingling and pain extending down the right leg.  The examiner documented painful and decreased spinal ROM noting forward flexion to 50 degrees (normal 90) and a combined ROM of 160 degrees (normal 240).  Local spinal tenderness without spasms was present, and the examiner also noted “right lower extremity with decreased muscle mass.”  At the 27 March 2008 MEB NARSUM examination, 5 months prior to separation, the CI endorsed the inability to sit or stand for prolonged periods, or run or perform push-ups and sit-ups.  Although the provider noted using a goniometer to measure ROMs during the examination, the listed measurements (with painful motion) were identical to those recorded at the MEB examination.   

A primary care encounter on 23 April 2008, 4 months prior to separation, noted full lower spine ROM and a positive straight leg raise (pain radiation), whereby the left leg raise was negative.  The CI demonstrated an antalgic gait aided by the use of a cane.

At the 18 December 2008 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported constant LBP aggravated by prolonged standing/sitting, bending, twisting and or lifting.  Prior MRI studies indicated lumbosacral degenerative disc disease with right-sided nerve-root compression of S1.  An electro-diagnostic study also confirmed an S1 radiculopathy.  Physical examination revealed an antalgic gait, right-sided spinal tenderness, and fine touch sensation decreased along the right S1 dermatome into the lower extremity.   Spinal ROM was painful with flexion to 30 degrees, and a combined ROM of 120 degrees. There were no further ROM deficits upon repetitive movements.      

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the LBP condition 20% and 40%, respectively, utilizing VASRD codes 5243 (intervertebral disc syndrome) and 5237 (lumbosacral strain), citing decreased ROM.  The VA also separately rated the right S1 radiculopathy 10%, coded 8521 (incomplete paralysis of the common peroneal nerve), based on the C&P examination, citing mild incomplete paralysis of foot movements.  Members first agreed that the documented physical parameters found in the two clinical encounters within 24 hours of each other (8 & 9 January 2008) were so inconsistent and near being impossible, that no probative value was given to the examinations.  Members further agreed to apportion probative value equivalently across the rest of the pre-separation examinations, and adjudged that that the limited spinal ROM of 50 degrees flexion and combined ROM of 160 degrees clearly supported an impairment rating no greater than the PEB’s current 20%.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the chronic LBP.  

The panel also considered if the adverse symptomatology of the right lower extremity indicated a separate and additionally ratable radiculopathy, noting that the established principle for fitness determinations is that they are performance based.  Although the CI’s spinal ROM fluctuated quite extensively, it normalized 4 months before separation as documented on 23 April 2008.  The decreased spinal ROM, coupled with a continued altered gait requiring a cane for ambulation in the presence of atrophied leg muscles, lent great support that the residual radiculopathy was associated with a functional impairment which separately could interfere with the CI’s performance of duties.  The panel majority agreed that the preponderance of evidence with regard to the radiculopathy favored its recommendation as an additionally unfitting condition for a disability rating and is most appropriately coded 8521 (paralysis; incomplete of the common peroneal nerve).  After due deliberation, considering all the evidence and mindful of VASRD §4.3, the panel recommends a disability rating of 10% for the right-sided radiculopathy, coded 8521. 

BOARD FINDINGS:  In the matter of the chronic low back pain and IAW VASRD §4.17a, the panel recommends no change in the PEB adjudication.  In the matter of the right-sided radiculopathy, the panel majority agreed that it was separately unfitting and recommends a disability rating of 10%, coded 8521 IAW VASRD §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.

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	20%	
Radiculopathy, Right Leg	8521	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record