RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01439
BRANCH OF SERVICE:  Army	BOARD DATE:  20150206
SEPARATION DATE:  20041119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Bridge Crew Chief) medically separated for chronic low back pain (LBP).  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “lumbar spondylolysis” and “status post anterior lumbar fusion” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic low back pain…s/p anterior interbody fusion L5-S1” as unfitting, rated 20%,  with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) resulting in a modification to the IPEB findings and recommendations, which included a changed code and disability description, and also implicated likely application of AR 635-40, B-29 and the CI was medically separated.

CI CONTENTION:  “l am unable to stand for any period of time since the surgery.  I cannot sit for any period of time.  I could touch my shins after surgery but can only reach my knees on a good day.  I cannot walk more than a short city block.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service Admin Corr FPEB – Dated 20040429	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…s/p Fusion L5-S1	5241	20%	Low Back Fusion	5241	20%	20041222	
Other X 0 (Not in Scope)	Other x 7 	
Rating:  20%	Rating:  20%	
Derived from VA Rating Decision (VARD) dated 20050427 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain…s/p Fusion L5-S1.  The narrative summary (NARSUM), written 11 months prior to separation, stated that the CI had an L5-S1 anterior lumbar fusion in November 2002.  Despite physical therapy (PT), his back pain continued.  At the CI’s post-operative visit with his Neurosurgeon, 19 months prior to separation, the CI stated that he “[did] get occasional lumbar discomfort if he [sat] for prolonged period of time … o/w [the CI was] doing very well.”  The neurosurgeon documented that the CI “[arose] from a chair to a standing position without difficulty.”  At a PT evaluation, approximately 16 months prior to separation, the CI stated that his pain level was a “2.5/10” and his “back is doing pretty good but does have intermittent exacerbations…and [that he was] walking for 30 minutes every morning with no increase in pain.”  The examination documented normal posture, flexion to 45 degrees, and that “flexion and side bending [was] not painful with movement but [was painful] with recovery from movement.”  The NARSUM referenced PT records dated 14 months prior to separation that stated “significant reduction in range-of-motion (ROM)… with ‘the possibility of gradual improvement’ from an exam that documented flexion of 40 degrees.”  The NARSUM examiner stated that his ROM was “somewhat limited.”

At a subsequent PT evaluation, approximately 13 months prior to separation, the CI stated that “[he still was] unable to walk greater than 1.5 – 2 miles at [a] slow pace-- unable to progress faster without significant pain,… still had difficulty with putting on boots without placing feet on couch and with placing foot on stool,...unable to lift greater than 15 pounds without muscle spasms and cannot sit greater than 30 min without increase in pain.”  The examiner documented normal posture with moderate loss of lordosis in the lumbar spine, flexion of 30 degrees and tenderness of the paraspinal musculature from L2-S1 levels, pain with hip flexor testing and negative straight leg raise.  At the MEB exam, 9 months prior to separation, the CI reported use of a back brace.  The MEB physical exam documented tenderness over the paravertebral musculature of the lower lumbar region with “decreased range of motion.”

The CI returned to the PT clinic, 7 months prior to separation, for “ROM measurements for PEB Appeal” with “pain currently rated as 3/10” and “continued numbness and tingling into bilateral feet.”  The examiner documented thoracolumbar flexion was 10 degrees, normal left and right rotation to 30 degrees, “but no motion increases these symptoms.”

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported chronic pain with restricted ROM, the ability to walk indefinitely without using assistive devices, and had no flares, no radiation, and no weakness or bowel/bladder issues.  The exam documented an upright, steady posture with normal gait, forward flexion to 55 degrees, no fatigability, no tenderness or muscle spasm, and no weakness with normal sensation.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~14 Mo. 
Pre-Sep	PT ~13 Mo. 
Pre-Sep	NARSUM ~11 Mo. Pre-Sep	PT~7 Mo. 
Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	40	30	“ROM is somewhat limited”	10	55	
Combined (240)	Unk (~175)	Unk (~125)		100	165	
Comment:  Surgery 20021121	Normal gait	Loss of lordosis, +TTP of muscles	SLR + at 60	Pain 3/10; ROM-only eval	No fatigability; no spasm; normal gait	
§4.71a Rating	20%	40%	Unk (PEB 20%)	40%
(PEB 20%)	20% (VA 20%)	
* Spine Formula notes 2 and 4 were applied for rounding and truncating ROMs at VA normal limits.  
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back fusion at 20% under 5299-5237 (lumbosacral strain) based on decreased ROM (flexion to 40 degrees) and continued pain without radiculopathy or muscle spasm.  After the CI appealed, the FPEB kept the 20% rating but modified the IPEB code to 5241 (spinal fusion) and the disability description.  The VA rated the low back at 20% for limited ROM and pain.  The ROM (flexion to 55 degrees) of the VA exam supported the 20% rating based upon the general rating formula for diseases and injuries of the spine (loss of flexion with ROM greater than 30 degrees but not greater than 60 degrees).

There was a disparity between examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  In assigning probative value to these somewhat conflicting examinations, the Board notes that multiple PT notes referenced by the MEB and NARSUM documented a stable spine with thoracolumbar flexion of greater than 30 degrees but not greater than 60 degrees, prior to separation.  There was not a reasonable accounting for the progressively impaired, nearly ankylosed thoracolumbar measurements (flexion 10 degrees) documented in the 3 months interval between the NARSUM and FPEB PT examinations.  The FPEB PT evaluation was 7 months remote from separation while the VA exam was significantly close to the date of separation (a month).  The Board unanimously agreed that the evidence in closest proximity to the date of separation, the VA C&P evaluation, had the highest probative value for rating at the time of separation and supported a rating of 20%.

There was no evidence to support duty limiting nerve root impingement or radiculopathy for consideration of a separately unfitting peripheral nerve rating.  Pain, whether or not it radiates, is considered under the general rating formula of the spine.  There was no documentation of persistent ankylosis of the spine, incapacitating episodes (physician prescribed bed rest) approximating 6 weeks, or other evidence that would support a higher rating.

After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back fusion 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 AR 635-40 B 29 for rating the low back fusion was likely operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the low back fusion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, 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 for XXXXXXXXXXXXXXX, AR20150009914 (PD201301439)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			
						         
CF: 
(  ) DoD PDBR
(  ) DVA