RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-04864
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Multiple Launch Rocket System Crewmember, medically separated for “low back pain” with a disability rating of 20%.  

CI CONTENTION:  The condition continues to worsen and negatively impacts daily activities.  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 - 20060608	VARD - 20060724	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain 	5241	20%	Intervertebral Disc Syndrome Involving Nerve Root Level L1-S1	5243	60%	20060302	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent surgery in March 2005 with multilevel instrumented lumbar spinal fusion at L2-L3, L3-L4 and L4-L5.  He was placed on convalescent recovery until November 2005.  He continued treatments with a neurosurgeon, multiple nonsteroidal anti-inflammatory drugs and narcotics medication without significant improvement.  In February 2006, the neurosurgeon felt the CI would not make a full recovery and the CI was unable to perform his duties.  

At the 2 March 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported pain, stiffness and weakness of the lower back.  The pain was constant and characterized as 8/10, aching and sharp in nature.  Pain was elicited by physical activity, stress and at times came by itself.  At the time of pain, he could function with medication, but the pain was constant at approximately 5-6/10.  He related incapacitating episodes as often as 2 times per month, lasting 2 days.  Over the previous year, he had 36 incidents of incapacitation for a total of 72 days.  Physical examination of the spine revealed normal head position with symmetry in appearance and motion with normal curvatures.  Muscle spasm and tenderness was present.  There was no ankyloses of the spine.  Painful range of motion (ROM) testing showed flexion of 15 degrees (normal 90) and combined ROM of 40 degrees (normal 240), after repetition.  Joint function of the spine was additionally limited by pain, fatigue, weakness, lack of endurance and incoordination, after repetitive use, and pain has the major functional impact.  

The 20 March 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of inability to perform physical training or any aspects of his job secondary to pain.  Physical examination showed an antalgic gait favoring the right side and use of a cane to assist with walking.  The physical therapy (PT) MEB goniometry assessment on 13 March 2006, showed flexion of 10 degrees and combined ROM of 50 degrees, with significant discomfort in all planes of motion.  He required the use of his hands on his thighs to complete standing.  His gait was antalgic and he reported pain in the low back with poor balance.  Heel walking was normal, but with pain.  During the 23 May 2006 PT evaluation for MEB ROM measurements, 1 month prior to separation, the CI reported constant 6/10 back pain increasing to 8-9/10, at worst.  Physical examination recorded flexion of 20 degrees and combined ROM of 115 degrees, with decreased muscle control, pain and low back muscle spasms.  The examiner noted significant difficulty with ROM testing and painful facial expressions.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion), citing ROM limited by pain and antalgic gait; with likely application of AR 635-50, B-29 (in effect at the time), which indicated “ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found,” and not joint pain resulting in loss of motion.  The VA rated the back condition 60%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks over 12 months.  

The VASRD spine ratings are based on active ROM limitations, and not ROM restricted solely due to a mechanical basis.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on all examinations proximate to separation.  The panel considered whether a higher rating (IAW VASRD §4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had IVDS, the prescribed post-surgical convalescent leave is not considered “physician-prescribed bed rest,” and therefore, there were insufficient incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of a higher 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 back condition, 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 Low Back Pain 	5241	40%	

[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 40% effective the date of your medical separation for disability with [severance pay] [Reserve retirement].  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, (TAPD-ZB / XXXXXXXXXX),.

	A copy of this decision has also been provided to the Department of Veterans Affairs [and to the counsel you listed on your application; [name and address]].

	

Sincerely,					      
						      					
Enclosure