RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-03639
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Ammunition Specialist, medically separated for “chronic low back pain secondary to degenerative disc disease” with a disability rating of 10%.  

CI CONTENTION:  “After three surgeries my condition has not improved.”  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 - 20060323	VARD - 20060814	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Lumbosacral Degenerative Joint Disease…	5237	40%	20060705	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in January 2004 after a hard landing during airborne training.  He reported LBP that radiated to the right lower extremity (RLE) in the sciatic nerve (S1) distribution, and an MRI on 23 March 2004 showed degenerative disc disease (DDD) and diffuse arthropathy with a disc herniation at L5-S1 causing right S1 nerve impingement.  The CI received an epidural steroid injection (ESI) which greatly improved the RLE symptoms, but the LBP continued to wax and wane.  
In April 2005, the CI reported worsening LBP and radiation to the RLE with occasional numbness and tingling.  An MRI on 3 June 2005 showed DDD and a herniated disc at L4-5 with right L5 nerve root impingement.  There was also a herniation at L5-S1 with an annular tear which contacted the thecal sac (covering of spinal cord), but it did not appear to impinge on the nerve root.  Electrodiagnostic studies performed in November 2005 were normal.  The CI received three additional ESIs in 2005 without LBP relief.  

During the 20 January 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported constant LBP that precluded him from exercising.  He also had intermittent radiation down the RLE to the back of the knee, with occasional numbness and tingling.  The provider noted the orthopedic surgeon had offered surgery, but the CI declined.  Physical examination showed a normal gait with lower spine tenderness, and painful, limited range of motion (ROM) in all planes.  At the MEB physical therapy evaluation on 23 January 2006, thoracolumbar flexion was to 20 degrees (normal 90) with a combined ROM of 65 degrees (normal 240), and motion limited by pain.  The 17 February 2006 MEB NARSUM examination, 2 months before separation, cited the same symptoms reported at the MEB examination.  The provider noted the CI moved stiffly with mild muscle spasms, and that he was not at surgical candidate at the time.  

At the 5 July 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant low back and RLE pain.  He had numbness and tingling in the RLE several times a week, which led to leg weakness if he did not shift his weight, and he also reported sexual dysfunction.  He had been treated with opiates, but reported that due to addiction concerns, he stopped taking them.  He also discontinued his antidepressants for chronic pain as well.  The CI was able to work with pain and had had missed one day of work.  Physical examination showed an antalgic gait favoring the right.  Back ROM tests showed flexion to 20 degrees and a combined ROM of 65 degrees, with painful motion.  The examiner stated the CI was unable to perform repetitive flexion and extension.  Lumbar spine X-rays showed moderate degenerative changes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, analogously coded 5242 (degenerative arthritis of the spine), citing ROM limited by pain.  The VA rated the low back condition 40%, coded 5237 (lumbosacral or cervical strain), based on the C&P examination, citing flexion of the thoracolumbar spine less than 30 degrees.  Panel members agreed that a 40% rating, was justified for limitation of flexion (not greater than 30 degrees) as reported on the MEB ROM and C&P examinations.  Although the CI did have intervertebral disc syndrome (5243), there was no evidence of incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that formula.  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 LBP condition, coded 5242-5243. 

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel recommends a disability rating of 40%, coded 5242-5243 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 Low Back Pain	5242-5243	40%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170401, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20180010021, 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), XXXXXXXXXXXXXXXXXX

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure