RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03153
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050314

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E6, Motor Transportation Operator, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  In addition to the back condition, the CI also 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 - 20050124	VARD - 20050922	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Degenerative Disc Disease	5243	10%	20070920	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in January 2004 while loading and tying down equipment.  An MRI showed severe L5-S1 spondylosis (disk wear and tear) with loss of disk height and mild degenerative disease causing foraminal stenosis (narrowing of the openings between vertebrae).  A spinal fusion was offered, but the CI reasonably declined.  A physical medicine examination on 5 August 2004, 7 months before separation, recorded a normal lumbosacral spine appearance without muscle spasm.  Lumbosacral spine range of motion (ROM) was not “full.”  Painful motion was present.  

During the 14 October 2004 MEB NARSUM, 5 months prior to separation, the CI reported a stinging and stabbing lumbosacral spine pain that radiated to the right buttock, thigh and knee.  Physical therapy and spine stabilization exercises did not help the pain.  Physical examination revealed no spinal abnormalities but lumbosacral spine tenderness was present.  Repetitive, goniometric-measured back flexion was 25 degrees (normal 90) but combined ROM could not be calculated.  Painful motion, gait and muscle spasm were not addressed.  

There was no VA Compensation and Pension examination proximate to separation in evidence.  However, at a clinic examination on 12 December 2005, 9 months after separation, the CI reported low back pain.  Physical examination showed the CI seemed somewhat uncomfortable in a seated position.  The pain “limited” the spine active ROM (not quantified).  Painful motion, gait, tenderness and muscle spasm were not addressed.  The examiner opined that the CI’s “back pain [had] fair to poor control with current therapy.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing limited spine motion was due to pain alone (AR 635-40 paragraph B29 language).  The VA also rated the low back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the STR. The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees), as reported on the MEB NARSUM ROM examination which was the only quantified ROM examination proximate to separation.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that 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 back condition, coded 5237.

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends a disability rating of 40%, coded 5237.  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	5237	40%	

The following documentary evidence was considered:

[AR NUMBER], XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX	
XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX

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. 

Sincerely,		      

Enclosure