RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301090
BRANCH OF SERVICE:  Army	BOARD DATE:  20140515
SEPARATION DATE:  20020915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (13R10/Field Artillery Firefinder Radar Operator) medically separated for low back pain (LBP) condition.  His condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “mechanical low back pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated mechanical LBP with L5/S1 spondylolisthesis condition as unfitting, rated 10%, with cited or presumed application of Department of Defense Instruction (DoDI) 1332.39.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Since separation original decision was moved to 40% combines with secondary (can’t make out word) 100% permanent and total disabled.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting mechanical LBP condition is addressed below.  The major depressive disorder, as per the contention, was not identified by the PEB; and, thus is not within the DoDI 6040.44 defined purview of the Board.  This, and any other condition or contention not requested in this application, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service IPEB – Dated 20020809	VA* - (1.2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain…	5299-5295	10%	Spondylosis with Spondylolisthesis…	5299-5293	20%**	20020808	
Other x 0 (Not in Scope)	Other x 0	20020808	
Combined:  10%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20020808 (most proximate to date of separation (DOS))
**Rating increased to 40% effective 20030916 (within one year of separation); however; there is no VARD or C&P in evidence to substantiate this rating increase.

ANALYSIS SUMMARY:  The VASRD coding and rating standards for the spine used at the time of separation 15 September 2002 (38 CFR Part 4, 1 July 2001) are applied to the Board’s recommendation IAW DoDI 6040.44.  There is a significant difference between the current §4.71a general rating formula for the spine and that prior to 22 September 2002.

Mechanical Low Back Pain with L5/S1 Spondylolisthesis.  A review of the service treatment record indicated that the CI reported “that while he was playing basketball in January 2002 he fell, [on a concrete floor] landing on his back.”  Minimal relief was obtained with nonsteroidal anti-inflammatory medication.  A lumbar spine X-ray on 21 February 2002 was performed with the history of “persistent LBP after fall” revealed a “right L5 pars defect with a grade 1 anterolisthesis of L5 forward of S1.”  Orthopedic evaluation on 22 February 2002 noted no surgical intervention was indicated.  The CI had four physical therapy sessions in February and March 2002 with pain recorded between 6/10-7/10 during the treatments.  A report dated 3 June 2002 noted the CI returned from “con[valescent] leave for back pain” and was “without c/o pain but state[d] back feels weak.”  However, chiropractic evaluation on 26 June 2002 identified a “+ taunt [band], palp[able] tenderness L5-S1, [and] pa [pain at] 40 degrees flexion and 20 degrees extension.”  A lumbosacral spine series performed on 6 March 2002 utilizing five views with obliques indicated a “Negative lumbosacral spine.  No evidence of spondylolysis or pars defect.”

At the MEB medical examination on 3 April 2002, approximately 5.5 months prior to separation, the CI noted a “fractured back during AIT,” while the examiner’s annotations on Form 2808 listed “positive tenderness bilateral SI area,” “[negative] radiation with SLR (straight leg raising),” and “no neuro deficit noted.”  On 23 April 2002 a L3 profile limited the CI to no sit-ups, no lifting more than 30 lbs, running at his own pace and distance, no wearing rucksack and no jumping.  The CI appealed the “running at his own pace” to “no running” on 17 July 2002.  The MEB narrative summary (NARSUM) examination dated 13 June 2002, approximately 3 months prior to separation, indicated the CI was unable to perform certain specific tasks within his MOS.  An additional restriction to his profile was the he could not lift greater than 30 pounds.  The exam indicated normal motor and neurologic findings with normal gait.  There was tenderness in the right sacroiliac area, with no tenderness in the sciatic notch.  Straight leg raise test (for radicular symptoms) was negative bilaterally.  “Full range of motion was noted of the lumbar spine, however, the patient complains of discomfort at the end-point of forward flexion.”  A magnetic resonance imaging (MRI) dated 10 July 2002 that was requested with the history of persistent LBP with radiculopathy was interpreted by a radiologist whose impression was “Grade 1 spondylolytic spondylolisthesis of L5 on S1.  Moderate L-4/5 central disc protrusion which does not cause spinal canal stenosis or foraminal stenosis.  L3/4 mild spinal canal stenosis due to a central disc protrusion.”  The IPEB convened 9 August 2002 found the CI physically unfit for chronic mechanical LBP with L5/S1 spondylolisthesis without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion.  The case was adjudicated IAW DoDI 1332.39 and AR 635-40, Appendix B-39.

At the VA Compensation and Pension spine examination dated 8 August 2002, approximately a month prior to separation, the CI reported symptoms for 8 months, which included constant low back pain and bilateral leg pain that traveled to both the right and left legs.  The symptoms required “treatment by a physician and bed rest once per week, each time lasting about 30-45 minutes.”  There was painful motion with tenderness over the spinous process of L5 and S1.  There was no muscle spasm, negative straight leg raise test bilaterally and “No signs of radiculopathy at present testing today.”  Flexion was noted as 55 degrees (N=95 degrees) with pain at 55 degrees.  Extension, lateral bending and rotations were noted as painful and 5 degrees to 10 degrees below the examiner’s written normal values.  A radiologic examination note on 5 August 2002 indicated “h/o pars defect presents after MVA with worsening back and neck pain.  R/O new abnormality.  Impression:  Incomplete visualization of the lower spine, but otherwise unremarkable.”  The VARD dated 19 February 2003, most proximate to permanent separation (DOS on 15 September 2002) assigned an evaluation of 20% (coded under 5299-5293, Intervertebral disc syndrome) “for the symptoms of pain on examination along with a moderate decrease in the range of motion of the lumbar spine.”  A VARD dated 10 September 2007 noted the rating for his condition was increased to 40% (coded 5292, spine, limitation of motion of, lumbar) from 16 September 2003, a year post-separation; however, there was no supporting VA examination or earlier VARD in the submitted records to provide details for review.

The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.  (Pre-23 Sep 2002)

5292 Spine, limitation of motion of, lumbar
Severe .............................................................................................................................	40
Moderate ..........................................................................................................................	20
Slight .................................................................................................................................	10

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased disc, little intermittent relief…….........	60
Severe; recurring attacks, with intermittent relief...............................................................	40
Moderate; recurring attacks..............................................................................................	20
Mild..................................................................................................................................	10
Postoperative, cured..........................................................................................................	0

5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion .....................................................	40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
in standing' position .........................................................................................................	20
With characteristic pain on motion ...................................................................................	10

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rating of 10% coded analogously to 5295 (lumbosacral strain) was based on the MEB exam.  Since the MEB exam documented painful motion, no spasm and little history of radiating symptoms there was no avenue for rating that specific exam higher than that 10% under any rating schema.  However, the VA exam was pre-separation and documented limited forward flexion of 55 degrees of a stated normal of 95 degrees and considered DeLuca criteria.  Independent rating of this exam would support a 20% rating under code 5292 for moderate limitation of lumbar motion.  Analogous coding using 5293 (Intervertebral disc syndrome) was supported by MRI evidence and the reported symptoms of pain with radiation compatible with sciatic neuropathy.  Additionally, although not recorded in the NARSUM, the CI had treatment record evidence of recurrent attacks supported by convalescent leave, sick call visits as well as treatment visits that would be also be considered greater than mild that more closely approximate the 5293 20% criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% using code 5299-5293 for the mechanical LBP with L5/S1 spondylolisthesis 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 DoDI 1332.39 and AR 635-40 for rating the low back condition was operant in this case and the condition was adjudicated independently of that policy and instruction by the Board.  In the matter of the mechanical LBP with L5/S1 spondylolisthesis condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5293 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Mechanical Low Back Pain with L5/S1 Spondylolisthesis	5299-5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130724, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
forXXXXXXXXXXXXXXXXXX, AR20140018984 (PD201301090)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     

CF: 
(  ) DoD PDBR
(  ) DVA