RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01839
BRANCH OF SERVICE:  Army	BOARD DATE:  20140930
SEPARATION DATE:  20041117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (45K10/Armament Repairer) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP condition, characterized as “spondylolisthesis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain secondary to Grade I spondylolisthesis of L5 on S1” as unfitting, rated at 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “As I get older the pain increases and body changes.”

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 chronic back condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20041001	VA - (2.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP Secondary to Grade 1 Spondylolisthesis of L5 on S1	5239	10%	Spondylolisthesis at L5-S1 with Diffuse Bulging of Disc	5239	10%	20050125	
Other x 0  (Not in Scope)	Other x 0 	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050411 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB.  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 re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Chronic Low Back Pain Secondary to Grade 1 Spondylolisthesis of L5 on S1.  The CI first presented with LBP on 28 October 2002, with a 2 to 3 days complaint of LBP following trauma (reportedly struck by a tank barrel).   X-ray images was found to reveal a slippage of L5 over S1 (spondylolisthesis) with narrowing of the nerve root outlets (foramina).  He was treated conservatively with medications, physical therapy and duty restriction, but his pain persisted.  On 18 September 2003 a magnetic resonance imaging confirmed the previous findings and also revealed a bulging disc at L5-S1.  The examination was normal other than some decrease in the right ankle jerk reflex.  A spinal surgeon consultation dated 18 March 2004 again thought the CI was a good candidate for surgery, other than his smoking.  His range-of-motion (ROM) and gait were normal aside from some restriction of a tighten hamstrings.  The CI was again seen on 
12 August 2004 in orthopedics and noted to have stopped smoking.  His options were discussed and the CI elected to proceed with an MEB. 

At the MEB examination, the CI reported chronic LBP and that surgery had been recommended.  The examiner noted normal ROM with pain, normal reflexes, negative testing to nerve root provocation and a step-off of the lumbar spine (consistent with the spondylolisthesis).  The narrative summary (NARSUM) dated 4 September 2004 (2 months prior to separation) the CI reported steadily worsening of the LBP which precluded him from performing his duties.  His ROM was full but painful, motor and reflex examinations were noted as normal.  Provocative testing for nerve root irritation was negative.

At the VA Compensation and Pension (C&P) examination (performed approximately 3 months after separation); the CI reported that he was not working full time; his current occupation was as a part time security guard.  He stated that the pay was poor and his duties aggravate his back.  He denied incapacitation episodes and was able to perform the activities of daily living.  The neurological examination was normal.  No comments were made on CI’s gait, but it was noted that he stated that he could walk several miles before experiencing back pain.  The CI did have back surgery 4 months after separation on 23 March 2005.

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)	MEB ~2 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Flexion (90 Normal)	Full Range of Motion	80	
Combined (240)	Full	210	
Comment	Pain at extremes of motion	Nml neurological examination	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both assigned a rating of 10% using the code 5239, spondylolisthesis.  The VA continued this rating upon review, but did add a painful scar effective 7 August 2009 and nerve pain (neuralgia) effective 3 September 2009, both over 4 year after separation.  The Board noted that the VA ROM supports a 10% rating as does the painful motion.  Absent spasm, a neuropathy (nerve damage from the back condition), or incapacitation, the Board found no route to a rating higher than the 10% adjudicated by both the PEB and VA at separation.  

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 back 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 20131009, 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, AR20150004687 (PD201301839)

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