RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02764
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O3, Field Artillery Officer, medically separated for “chronic back pain” with a disability rating of 10%.

CI CONTENTION:  In addition to the back condition, the CI requested review of additional conditions 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 - 20040929	VARD - 20050811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Intervertebral Disc Syndrome L4-5 	5241	40%	20050419	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent back surgery in November 2002 with a two-level lumbar fusion for degenerative disc disease.  X-rays on 6 January 2004 revealed surgical hardware from the L3-5 fusion as well as disc narrowing at L5-S1.  The physical therapy (PT) range of motion (ROM) study on 6 May 2004, 10 months prior to separation, showed, after repetition, flexion of 20 degrees (normal 90) and combined ROM of 110 degrees (normal 240).  An inclinometer was used for all ROMs except rotation (goniometer measured).  During the 21 May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported recurrent back pain.  Physical examination revealed decreased ROM of lumbosacral spine and normal strength of the lower extremities.  

The 27 May 2004 MEB NARSUM, 9 months prior to separation, referenced an 11 March 2004 examination (12 months prior to separation), which noted complaints of back pain caused by lower back weight training and any exercises that caused stress in the lower back.  The CI was unable to perform functional soldiering activities due to the pain.  Physical examination showed tender lumbar muscles.  The CI could flex to the waist with pain.  Patrick’s test (provocative test for radicular symptoms) was positive on the right with pain to the lower lumbar area and buttock.  

At an orthopedic clinic appointment on 1 September 2004, 6 months prior to separation, the CI complained of lower back weakness and trouble with bending, standing and sitting.  He had no bowel or bladder dysfunction.  Physical examination revealed a normal gait.  Estimated lumbar spine ROM was 20 degrees of flexion, extension (normal 30) and right and left lateral flexion (normal 30).  The examiner obtained goniometric ROMs from a PT that measured standing flexion at 10 degrees, extension at 0 degrees and right and left bending (flexion) at 20 degrees. 

During the 19 April 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported 6/10 back pain elicited by physical activity and stress.  The symptoms did not cause incapacitation.  Physical examination showed an abnormal gait with limping on the right leg, muscle spasm and tenderness.  Thoracolumbar ROM testing showed flexion of 30 degrees and combined ROM of 120 degrees.  Although the examiner noted the ROM was additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance and incoordination, the amount of limitation was not provided.  There was no guarding or ankylosis of the spine.  The examiner noted that intervertebral disc syndrome (IVDS) caused sensory deficits at L4-L5 and S1 spinal nerve root segments, there was no bowel, bladder or erectile dysfunction.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing “thoracolumbar ROM limited by pain, with localized tenderness” IAW AR 635-40, B-29e (in effect at the time).  The VA rated the back condition 40%, also coded 5241, based on the C&P examination, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  

The panel deliberated the probative value of the various examinations in evidence.  The VA examination was adjudged to have the highest probative value for rating, as it was closest to separation, most detailed (included repeated goniometric measurements), considered DeLuca criteria, aligned with the underlying pathology and was consistent with other contemporary ROM evaluations in the STR.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the PT, orthopedic and VA ROM examinations.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  Although the CI had IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the chronic back pain, 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain 	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170323, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190009190, 

Dear XXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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.