RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100173 SEPARATION DATE: 20051121

BOARD DATE: 20120619

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SGT/E-5 (92G2O/Food Service Operations), medically separated for chronic subjective back pain. The CI injured his back while deployed and did not respond to treatment. His symptoms increased over time and he was unable to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P4U2L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for PEB adjudication. The PEB adjudicated the chronic subjective back pain condition as unfitting, rated 10% with probable application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI initially disagreed with the PEB findings and submitted additional medical information. Upon review of the additional information the PEB determined that no change in its original findings was warranted. The CI was medically separated with a 10% disability rating.

CI CONTENTION: “I was not evaIuat[ed] for PTSD disorder, I suffered a fracture[d] right tibia, and also sustained a right meniscal tear.”

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 contended conditions of post traumatic stress disorder, fractured right tibia, and right meniscal tear do not meet the criteria prescribed in DoDI 6040.44 and are not within the Board’s purview. The condition of chronic subjective back pain meets the criteria and is addressed below. 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 Army Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

*Radicular Symptoms, Right and Left lower extremity, associated with Degenerative Disc Disease with Intervertebral disc Syndrome, Lumbar Spine were added at 0% each effective 20061020.

**All ratings (except PTSD which was 10%) were initially 0% prior to any VA C&P examination. After the initial VA C&P examinations were completed in October 2006, the ratings in the chart above were determined with the effective date of 20051122.

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation and is limited to conditions adjudicated by the PEB as either unfitting or not unfitting. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Subjective Back Pain Condition. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

An MEB narrative summary (NARSUM) was completed 2 months prior to separation and noted a history of back pain which started in April 2003 while he was deployed in support of Iraqi Freedom. He first noticed pain after he injured his back lifting a mobile kitchen trailer. He was treated symptomatically but his pain progressed to moderately severe pain with intermittent radiation into both legs but with more to the left leg. Magnetic resonance imaging (MRI) in September 2005 did show bulging discs at L3-5 but no significant mass effect on any nerve root or nerve root sleeve was noted. A previous MRI in October 2003 had similar findings and a discogram was negative in February 2004. An EMG of the left leg in January 2004 documented the absence of left H-reflex and this can point to a S1 nerve root challenge. No other abnormality was noted. The ROM and other exam findings are noted in the chart above. No neurologic examination was documented.

At the first VA Compensation and Pension (C&P) exam, completed 11 months after separation, the physician noted the exam noted in the ROM chart above and the diagnosis was degenerative disc disease of the lumbar spine with intervertebral disc syndrome, pain-limited range of motion, erectile dysfunction, bladder and bowel dysfunction status post spinal stimulation implants for back pain with scars. The CI reported pain in his lower back for approximately 3 years with stiffness in the morning upon awakening, standing and walking and weakness. The pain was reported as constant and travels to his bilateral feet and is characterized as aching, cramping, and sharp and rated at 7/10. The pain is relieved with rest and medications, Gabapentin, narcotics, muscle relaxants, and nonsteroidal anti-inflammatory medications. The CI reported no periods of incapacitation. Pain is increased with prolonged standing, bending, reaching, driving, sitting, and walking. The examiner noted objective evidence of lumbosacral intervertebral disc syndrome involving L1-L5 and S1, most likely related to the sciatic nerve, limited ROM with pain, antalgic gait, and scars.

A PEB convened on 21 October 2005 and determined the chronic back pain condition without neurologic abnormality was unfitting and recommended a 10% disability rating. While the USAPDA pain policy is not specifically mentioned, it was most likely applied by the PEB. Prior to the completion of the VA C&P examination in October 2006, the VA applied an initial rating of 0% based on service treatment records. However, on a subsequent VA Rating decision (VARD), the VA acknowledged the error of not scheduling the C&P examinations sooner. The examination was completed in less than 12 months after separation from service and the ratings based on this exam for the back pain condition as well as 10 other conditions were made effective the day after separation. The VA rated the back pain at 40% based on the finding out thoracolumbar flexion of 30 degrees or less. This level of limitation of flexion was also noted on the MEB NARSUM examination 2 months prior to discharge. 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.

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 for rating the chronic back pain condition was most likely operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic back pain condition, the Board 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110328, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXX

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

for XXXXXXXXXXXXXX, AR20120011915 (PD201100173)

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.

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 XXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA