RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201065 SEPARATION DATE: 20031114 BOARD DATE: 20130117 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (92G30/Food Service Specialist), medically separated for chronic back pain. The patient underwent surgical intervention (left L3-4 microdiscectomy) on 6 February 2003. Six months status post (s/p) operatively, the CI continued to complain of back and left leg pain. Despite medical and physical therapy (PT), the CI did not improve adequately to meet the physical requirements of his Military Occupational Specialty (MOS) or to satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). “Chronic low back pain/leg pain s/p surgery; degenerative disc disease L3-4, L4-5, marked; post operative adhesive epideritis (opideral scar) L3-4; L4-5 mild central disc herniation; (and) left L5 radioculopathy” [sic] conditions were identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the chronic back pain condition as unfitting, rated 20% with cited application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 20% disability rating. CI CONTENTION: The CI elaborated no specific contention in his application. SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The chronic back pain condition as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below, in addition to a review of the ratings for the unfitting condition. The remaining conditions rated by the VA at separation and listed on the DD Form 294 are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the service Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20030917 VA (~1 Mo. Post-Separation) – All Effective Date 20031115 Condition Code Rating Condition Code Rating Exam Chronic Back Pain 5099 5003 5293 5299 5295 20% Degenerative Disc Disease L3- 4, L4-5 with Left L5 Radiculopathy Status Post Left L3-4 Microdiscectomy 5243 40%* STR Chronic LBP / Leg Pain S/P Surgery MEB DDD L3-4, L4-5, Marked MEB Post-Op Adhesive Epideritis (Scar).. MEB L4-5 Mild Central Disc Herniation MEB Left L5 Radiculopathy MEB .No Additional MEB/PEB Entries. 0% X 2 / Not Service-Connected x 6 Combined: 20% Combined: 40% ANALYSIS SUMMARY: Chronic Back Pain Condition. The narrative summary (NARSUM), accomplished by a neurosurgeon, indicated the CI initially developed acute low back pain in 1994. Over the next several years he experienced chronic low back pain (LBP) until late 2002 when the CI’s LBP began to be associated with radiation to his left leg, posterior thigh and lateral foot. The CI had three episodes of his left leg giving out and magnetic resonance imaging (MRI) demonstrated a large central disk herniation at L3-4 with significant relative central stenosis. The CI underwent surgery for L3-4 disc herniation in February 2003 (9 months prior to separation) and was on convalescent leave and then 14 days of quarters. Six weeks post-operatively, the CI had symptoms and signs of tenderness; painful motion; spasm; and a positive straight leg raise (SLR); leg symptoms were improved except for diminished sensation. In June 2003, 4 months prior to separation, the CI reported increased back pain and worsening compared with his pre- surgical condition, with burning dysesthetic pain in the left leg L5 distribution. He was limited to working 4 hours per day and was not able to stand on his feet due to his LBP. The MEB physical examination revealed back tenderness, marked right paraspinal muscle spasm, negative SLR and normal strength. Forward flexion was limited to 30 degrees (normal 90 degrees). There was no VA Compensation and Pension (C&P) exam proximate to separation as the CI failed to show for a scheduled VA exam. The VA rating was based on the CIs service treatment records (STRs) and medical records. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic back pain as 5099-5003, 5299-5293, 5295 based on the Army Pain Policy at 20%. The PEB coding was under Interim spine criteria which were changed to the new spine criteria effective 26 September 2003, which is prior to the CI’s date of separation. The VA coded the condition 5243 (Intervertebral Disc Syndrome) rated 40% based on ROM IAW the new VASRD coding. There was no complete goniometric range-of-motion (ROM) evaluation proximate to separation. The Board discussed the fact that neurosurgery exams prior to the NARSUM did not specify numeric ROMs, nor comment upon them. Exams documented back tenderness, marked spasm, and significant functional loss and restrictions. There were no notes to indicate incapacitating episodes (defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician”) following the surgical recovery. Therefore there was no basis for rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, using code 5243 (Intervertebral Disc Syndrome). The Board considered rating 5243 or 5237 (Lumbosacral Strain) under the General Rating Formula for Diseases and Injuries of the Spine which is with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The Board deliberation focused on the 40% versus the 20% rating. The Board discussed if the 30 degrees forward flexion documented at the MEB exam and the record of post-operative functional disability and restrictions met the criteria for a 40% (forward flexion of the thoracolumbar spine 30 degrees or less) and if the CI’s disability picture more nearly approximated the criteria required for that rating IAW VASRD §4.7 (higher of two evaluations). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic back pain condition, coded 5243. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on the USAPDA pain policy and the pre-September 2003 VASRD for rating the chronic back pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board using the VASRD in effect at the time of separation. In the matter of the contended LBP condition, the Board unanimously agrees that it was unfitting; and, unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Back Pain 5243 40% COMBINED (w/ BLF) 40% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120619, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20130004005 (PD201201065) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with [severance pay] [Reserve retirement]. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)