RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                 BRANCH OF SERVICE:  ARMY
CASE NUMBER:  PD1001266                                    SEPARATION  DATE:
20030120
BOARD DATE:  20120201


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty SPC/E-4  (75H,
Personnel Management) medically separated for chronic low  back  pain  (LBP)
and recurrent/residual left S1 radiculopathy.  He was treated, but  did  not
respond adequately to fully perform his military  duties  or  meet  physical
fitness standards.  He underwent a Medical Evaluation Board (MEB).   Chronic
LBP and left sciatica associated  with  chronic  degenerative  disc  disease
(DDD) were forwarded to the Physical Evaluation  Board  (PEB)  as  medically
unacceptable IAW AR  40-501.   Five  other  conditions,  identified  in  the
rating  chart  below,  were  listed  on  the  DA  Form  3947  as   medically
acceptable.  The PEB found the chronic LBP and  the  left  S1  radiculopathy
unfitting, and rated them at 10% each.  The CI  made  no  appeals,  and  was
thus separated with a 20% combined disability rating .


CI’s CONTENTION:  The CI states, “I was given 20  percent  for  degenerative
disc disease and zero on other injuries.”


RATING COMPARISON:

|Army PEB – Dated 20021003     |VA (2 mos. Pre-Separation) – All Effective |
|                              |20030121                                   |
|Condition       |Code         |Rating                                     |
|↓No Additional MEB/PEB        |0% x 5 / NSC x 6                   |200211|
|Entries↓                      |                                   |15    |
|Combined:  20%                |Combined:  60%                             |


ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  The CI had a L5-S1  discectomy  in  1996.   He
was doing well until he reinjured his  back  during  Army  physical  fitness
training  in  April  2001.   Magnetic  Resonance  Imaging  (MRI)  showed   a
recurrent left L5-S1 herniated disc.  The CI had a second  L5-S1  discectomy
in November 2001.  He did well following surgery, but then the LBP and  left
leg pain returned.  A repeat MRI showed DDD at L5-S1, with  a  small  amount
of disc material and  fibrosis  extending  into  the  left  neural  foramen.
Further surgery was not recommended.  Despite treatment, his  condition  did
not show significant improvement and a MEB was initiated.  At his July  2002
neurosurgical MEB exam, six months prior to separation,  the  CI  complained
of LBP with pain and numbness in his left leg.  The pain was  constant,  and
he could not stand or  sit  for  more  than  ten  minutes  without  changing
position.  On exam, the CI appeared to be in no acute distress, but  had  an
antalgic gait and ambulated with a  cane.   Straight  leg  raise  (SLR)  was
negative bilaterally, and  he  was  able  to  heel-toe  walk.   Romberg  and
Waddell tests were negative.  Range-of-motion (ROM) measurements are in  the
chart below.  Four months later at his November  2002  VA  Compensation  and
Pension (C&P) exam, two months prior to separation, the CI again  complained
of continuous LBP.  He also reported numbness, pain,  and  weakness  in  his
left leg.  He had an antalgic gait and  used  a  cane  in  his  right  hand.
There  was  some  tenderness,  but  no  muscle  spasms  were   noted.    Two
goniometric  ROM  evaluations  were  in  evidence,  and  these   exams   are
summarized in the following chart:

|Thoracolumbar        |Separation Date: 20030120           |
|Goniometric ROM      |PT – 6 mo. Pre   |C&P – 2 mo. Pre   |
|                     |Sep              |Sep (20021115)    |
|                     |(20020719)       |                  |
|Flexion (90⁰ is      |39⁰              |40⁰               |
|normal)              |                 |                  |
|Combined (240⁰ is    |(Incomplete)     |145⁰              |
|normal)              |                 |                  |
|Comments             |No mention of    |Pain with motion  |
|                     |pain             |                  |

The Board carefully examined all evidentiary information available.  The  VA
Schedule for Rating Disabilities (VASRD) coding  and  rating  standards  for
the spine, which were in effect at the time of separation, were  changed  to
the current §4.71a rating standards in September 2003.  The older  standards
for  rating  were  subject  to  the  rater’s  opinion  regarding  degree  of
severity, whereas the current standards specify rating thresholds in  actual
degrees of ROM impairment.  The Board must  comply  with  the  DoDI  6040.44
requirement for rating IAW the VASRD in effect at  the  time  of  separation
from service.  The Board noted that the  Army  PEB  and  the  Department  of
Veterans’  Affairs  (DVA)  chose  different  coding  options  for  the   LBP
condition.  After due deliberation, and consideration of all  the  evidence,
and  mindful  of  VASRD  §4.3  (reasonable  doubt),  the  Board  unanimously
recommends a rating of 20% for  the  LBP  condition.   It  is  appropriately
coded 5292 (Spine, limitation of motion, lumbar) and meets criteria for  the
20% rating level (moderate).

Left Lumbosacral (LS) Radiculopathy.  The Board then directed its  attention
to the issue of LS radiculopathy.  Review of the treatment  record  revealed
that the CI complained of radicular symptoms  (pain  and  numbness)  in  the
left lower extremity.  Physical exam and  neuromuscular  conduction  studies
were consistent with a left-sided  lumbosacral  (L5-S1)  radiculopathy.   As
noted above, the Army PEB found the radiculopathy unfitting,  and  rated  it
10%.   After considerable discussion, the Board unanimously agreed that  the
CI’s radiculopathy should be rated 10%.  The radiculopathy is  appropriately
coded 8699-8620, and meets criteria for the 10%  rating  level  (incomplete,
mild).

Other PEB Conditions.  Left hip pain, left knee pain, bilateral pes  planus,
left Achilles tendinitis, and adjustment disorder with depressed  mood  were
all adjudicated by the PEB as not unfitting.  None of these conditions  were
permanently profiled, implicated in the commander’s statement  or  noted  as
failing retention standards.  All were reviewed by the  action  officer  and
considered by the Board.  There was no indication from the record  that  any
of these conditions significantly interfered with  satisfactory  performance
of  required  military  duties.   All  evidence  considered,  there  is  not
reasonable doubt in the CI’s favor supporting reversal of  the  PEB  fitness
determination for any of the stated conditions.

Remaining  Conditions.   Lumbar  scar,  bilateral   hearing   loss,   penile
numbness, headaches, hypertension, insomnia, and  several  other  conditions
were also noted in the Disability Evaluation System  (DES)  file.   None  of
these conditions carried profiles or  were  implicated  in  the  commander’s
statement.  These conditions were all reviewed by  the  action  officer  and
considered by the Board.  It was determined that none  could  be  argued  as
unfitting and subject to separation  rating.   Additionally,  several  other
conditions were noted in the VA rating decision proximal to separation,  but
were not documented in the DES file.  The Board does not have the  authority
to  render  fitness  or  rating  recommendations  for  any  conditions   not
considered by the DES.  The Board, therefore, has no  reasonable  basis  for
recommending any additional unfitting conditions for separation rating.


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.  In the matter of the low back  pain  and  IAW
VASRD §4.71a, the Board unanimously recommends a  rating  of  20%.   In  the
matter of the left  LS  radiculopathy  and  IAW  VASRD  §4.124a,  the  Board
unanimously recommends a rating of 10%.  In  the  matter  of  the  left  hip
pain, left knee pain,  pes  planus,  left  Achilles  tendinitis,  adjustment
disorder, lumbar scar, hearing loss, numb  penis,  headaches,  hypertension,
insomnia, or any other conditions  eligible  for  consideration;  the  Board
unanimously agrees that it  cannot  recommend  any  findings  of  unfit  for
additional rating at separation.


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 Low Back Pain                             |5292        |20%     |
|Left Lumbosacral Radiculopathy (L5-S1)            |8699-8620   |10%     |
|COMBINED    |30%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20101117, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record





                                       President
            Physical Disability Board of Review


SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB), 2900 Crystal Drive, Suite 300, Arlington, VA  22202

SUBJECT:  Department of Defense Physical Disability Board of Review
Recommendation


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 30%
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.

      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 30% 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
                                       Deputy Assistant Secretary
                                           (Army Review Boards)

CF:
(  ) DoD PDBR
(  ) DVA