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 50% 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), 
	A copy of this decision has also been provided to the Department of Veterans Affairs.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-05218
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty, E4, Food Service Specialist, medically separated for “chronic subjective back pain” and “right L5-S1 radiculopathy,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  In addition to his unfitting conditions, the CI contended for multiple other conditions to include right shoulder, knees, left arm, nerve issues, insomnia, sleep apnea head trauma and brain injury.  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 - 20040820	VARD - 20060703	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain	5299-5237	10%	L4-L5 and L5-S1 Disk Herniation	5237	20%	20060602	
Right L5-S1 Radiculopathy	8599-8520	10%	No VA Placement	
[Bilateral] Knee Pain	Not Unfitting	Left Knee Arthritis	5260	10%	20060602	
Right Shoulder Pain		Right Shoulder Rotator Cuff 	5202	10%	20060602	
Median Neuropathy		No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Chronic Subjective Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI complained of back pain in October 2002 after doing sit-ups, but reported a several year history of low back pain (LBP) with a recommendation for surgery in 1998.  An MRI showed L4-L5 disc herniation contacting the L5 nerve root.  Initially the pain radiated down the left lower extremity (LE) and eventually down both LEs.  He was treated conservatively.  

At the 8 December 2003 VA Compensation and Pension (C&P) examination, 13 months before separation, the CI reported LBP that radiated to both LEs bilaterally, bedrest was prescribed by a physician in the past as often as three times per week and he had lost time from work.  Functional impairment was described as the inability to stand or sit for prolonged periods of time.  Physical examination showed an abnormal gait “with a propensity to lean forward for comfort measures.”  There was spinal tenderness without muscle spasm.  There was radiating pain on movement.  Back range of motion (ROM) testing showed flexion of 30 degrees (normal 90) and combined ROM of 120 degrees (normal 240), with painful motion.

At the 23 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 13 months prior to separation, the ROM evaluation showed flexion of 25 degrees and extension of 10 degrees (normal 30) with painful motion.  The 5 February 2004 MEB NARSUM examination, 12 months prior to separation, noted complaints of LBP that radiated down both LEs.  Physical examination cited the findings of the aforementioned MEB examination which was performed by the same examiner.  

At a physical therapy (PT) evaluation on 9 July 2004, 6 months before separation, ROM testing showed flexion of 25 degrees and combined ROM of 115 degrees; pain-limited motion was present.  During a VA PT evaluation on 13 October 2005, 9 months after separation, the CI reported LBP the radiated to the left LE to the knee.  Physical examination showed lumbar ROM within normal limits (WNL).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain) citing ROM limited by pain.  The VA rated the back condition 20%, coded 5237, based on the C&P examination, citing limitation of motion.

The panel majority agreed that a 40% rating, was justified for “forward flexion of the thoracolumbar spine 30 degrees or less” as reported on all examinations in evidence prior to separation.  Although the VA PT visit, 9 months after separation, reported ROM as WNL and not in degrees, it certainly reflected significantly better ROM than that required for 40% rating.  However, after deliberations the panel majority determined a 40% rating most approximated the CI’s back condition at the time of separation rather than post-separation improvement which required undue speculation.  There was no evidence of intervertebral disc syndrome which resulted in 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 back condition, coded 5243.

Right L5-S1 Radiculopathy.  According to the STR and MEB NARSUM, the CI’s back condition began in October 2002 as summarized above.  The CI reported LBP with radiation initially down the left LE and eventually down both LEs.  At an orthopedic evaluation on 17 November 2003, the CI reported persistent LBP and left LE radiation.  The CI was treated with PT and epidural steroid injections without resolution of his radiculopathy.  

At the 8 December 2003 C&P examination showed an abnormal gait “with a propensity to lean forward for comfort measures.”  There was radiating pain on movement.  Straight leg raise testing to elicit radicular symptoms was positive bilaterally.  Muscle and sensory function was reported as normal, as were reflexes.  

The MEB NARSUM noted complaints of LBP that radiated down both LEs.  The MEB examination showed a left limp with toe walk and awkward heel walk, due to being off balance on the right foot.  Resisted flexion and extension of the left leg was good, but resisted leg flexion and extension was weak on the right.  Reflexes were normal.  

At the PT evaluation on 9 July 2004, the strength of the right LE was 4/5 and the left LE was 4+/5.  Sensation was decreased to pinprick on the right LE over multiple dermatomes (L2-S1).  Ankle reflexes were 1+ bilaterally; the left knee reflex was also 1+, but the right knee reflex was absent.  Electrodiagnostic studies, performed on 5 August 2004, showed right LE radiculopathies, mild to moderately severe at L5-S1 and mild at L4-5.  There was no VA examination performed for radiculopathy proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right L5-S1 radiculopathy 10%, analogously coded 8599-8520 (sciatic nerve, incomplete paralysis), citing pain, weakness, and sensory impairment.  The panel agreed there was STR evidence which showed positive electrodiagnostic testing and mild right LE weakness consistent with L5-S1 lumbar radiculopathy to support a 10% rating.  There was no evidence of moderate weakness to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right L5-S1 radiculopathy.

Contended PEB Conditions: Bilateral Knee Pain, Right Shoulder Pain and Median Neuropathy.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The commander’s statement implicated the knee and shoulder conditions, but not the median neuropathy condition; however, none of these conditions were permanently profiled or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommends modification to a disability rating of 20% but did not elect to submit a minority opinion.  In the matter of the right L5-S1 radiculopathy and IAW VASRD §4.124a the panel recommends no change in the PEB adjudication.  In the matter of the contended bilateral knee, right shoulder and median neuropathy conditions, the panel recommends no change from the PEB determinations as not unfitting.  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 Subjective Back Pain	5243	40%	
Right L5-S1 Radiculopathy	8599-8520	10%	
COMBINED	50%