RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01725
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150805
SEPARATION DATE:  20090929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Wheeled Vehicle Mechanic) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent P3L3H2 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain, persisting after spinal fusion for extensive degenerative changes and spondylolisthesis” and “obstructive sleep apnea” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.   The MEB also forwarded seven other conditions (“degenerative disk disease of the cervical spine;” “degenerative joint disease of the knees;” “hyperlipidemia, requiring medications;” “high-frequency hearing loss;” “erectile dysfunction;” “status post nephrectomy, with normal renal function;” and “esophageal reflux, well treated with medications”) for PEB adjudication.  The Informal PEB adjudicated the back condition as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  His discharge was characterized as retirement based on length of service.

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.    

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:   

IPEB – Dated 20090625	VA* – (4 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion	5241	20%	Thoracolumbar Spine, Degenerative Joint Disease	5242	20%	20090527	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 22	
RATING:  20%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20091021 (most proximate to date of separation [DOS])  

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  This CI has had a long history of LBP.  Sometimes the pain would go down his left leg.  Initially, he was treated with conservative treatment measures.  Then, in August 2007, he underwent spinal surgery.  The operation had a beneficial effect on his leg symptoms, but did not help his back pain.  Due to the chronic, persistent nature of his LBP, an MEB was initiated.  The MEB physical examination (PE) was on 24 March 2009.  The CI reported that his LBP was exacerbated by bending, lifting, walking, running, or prolonged sitting.  He denied any leg weakness.  He was moving stiffly, but with a normal gait.  He was able to heel and toe walk without difficulty.  PE of the back revealed some paraspinal muscle tenderness at the L4-S1 level, with some palpable spasm.  Range-of-motion (ROM) of the lumbar spine was significantly limited by pain.  ROM was measured with a goniometer.  His forward flexion was 45 degrees, and combined thoracolumbar ROM was 100 degrees. The narrative summary (NARSUM) examiner’s diagnostic assessment for the lumbar back condition was: “Chronic low back pain, persisting after spinal fusion for extensive degenerative changes and spondylolisthesis, significantly limiting ability to perform military duty.”  

On 27 May 2009, 2 months later, the CI had a VA Compensation and Pension (C&P) exam.  He reported that his LBP was present daily. PE of the lower back revealed a dull pain present diffusely all the way from L3 to the S1 level, bilaterally.  Initially, no spasms were noted.  There was reversal of lumbar lordosis, due to the spinal fusion surgery.  Back ROM was measured, and his forward flexion was 70 degrees, and combined thoracolumbar ROM was 180 degrees.  The PEB and the VA chose different coding options for the LBP condition, but both assigned a 20% disability rating.  

The Board directed attention to its rating recommendation based on the above evidence.  The May 2009 C&P exam, was 4 months before the DOS, and therefore had significant probative value.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted when forward flexion is greater than 60 degrees but not greater than 85 degrees.  A rating of 10% is also warranted when thoracolumbar combined ROM is greater than 120 degrees but not greater than 235 degrees.

The Board then considered the CI’s abnormal spinal curvature.  At the May 2009 C&P exam, the examiner wrote: “The lumbar spine revealed reversal of the lumbar curve more or less complete because status post fusion L4-L5-S1 and there was a dull pain present diffusely all the way from the L3 to the S1 level bilaterally.”  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% rating is warranted when there is evidence of muscle spasm or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Therefore, the Board determined that a 20% rating was appropriate in this case, due to abnormal spinal contour.

The Board also considered the matter of peripheral neuropathy.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral neuropathy rating at separation.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was insufficient performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting LBP condition.  It is appropriately coded 5241 (Spinal fusion), and IAW VASRD §4.71a, meets criteria for a 20% 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the unfitting low back condition (Spinal fusion), 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 20130605, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018449 (PD201301725)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA