RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03176
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070822

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantryman, medically separated for “chronic back pain” with a disability rating of 10%.  

CI CONTENTION:  “Review all 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 - 20070606	VARD -20071205	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with Lumbar Disc Herniations 	5243	10%	Degenerative Disc Disease, Lumbar Spine with Sciatica	5242	40%	20071109	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in 2004 while deployed in support of OIF, with no specific trigger noted.  He attributed the pain to the constant wearing of field gear and several military vehicle accidents while on maneuvers.  An MRI on 1 May 2007 revealed the vertebral bodies were within normal limits in their size, shape, alignment, and signal characteristics.  The upper lumbar subarachnoid space and conus medullaris were normal in appearance.  There were disc herniations at the L3-4, L4-5, and L5-S1 levels.  

The 25 May 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant pain in his back rated at 4/10 with normal daily activities that increased to 8/10 when aggravated.  Physical examination showed positive lumbar paraspinal tenderness.  Neurological examination was within normal limits.  Thoracolumbar range of motion (ROM) showed flexion of 30 degrees (normal 90) and combined ROM of 135 degrees (normal 240).  Painful motion was noted.  

At the time of the emergency department visit on 25 September 2007, 1 month after separation, the CI reported low back pain.  On examination he ambulated without lumbar muscle spasm.  Straight leg raising test showed pain was localized to the back, with no radiation to either leg.  Thoracolumbar ROM showed flexion of 20 degrees.  

At the 9 November 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported low back pain (3/10) that radiated down the lower limbs and increased to an intensity of 8/10 when flare ups occurred.  Physical examination showed the CI walked with a normal gait.  There was tenderness, spasm, and a slight flattening of the lumbar curve.  Thoracolumbar ROM showed flexion of 30 degrees and combined ROM of 155 degrees. Painful motion was noted.  X-rays revealed no acute fracture, dislocation, or bony destructive lesion.  There was moderate disc space narrowing at the L5-S1 level.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome), citing thoracolumbar ROM limited by pain, with localized tenderness.  The VA rated the low back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination, citing “forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.”  

The panel agreed that a 40% rating was justified for limitation of flexion (not greater than 30 degrees) as reported on the MEB NARSUM, emergency department, and VA C&P examinations. There was no documentation of intervertebral disc syndrome 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 low back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 40%, coded 5243 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 with Lumbar Disc Herniations	5243	40%	

The following documentary evidence was considered:  

AR20180012238, 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.

Enclosure