RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX  	CASE:  PD-2013-01960  
BRANCH OF SERVICE:  Army  	BOARD DATE:  20150603  
SEPARATION DATE:  20050403  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Food Service Specialist) medically separated for a back condition.  The back 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).  “Spondylolysis and spondylolisthesis with L4 to S1 fusion” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic back pain status post L4-S1 fusion in treatment of spondylolisthesis, without significant neurologic abnormality” as unfitting, rated 20%, with possible application of Army Regulation (AR) 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was given a higher rating for his condition by the VA and his condition continue to worsen, negatively impact his daily activities.  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 Veterans Affairs Schedule for Rating Disabilities (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 20050119	VA* - (~1 Mos. Prior to Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post L4-S1 Fusion in Treatment of Spondylolisthesis, without Significant Neurologic Abnormality	5241	20%	Postoperative Residuals, Fusion, L4-S1, with Spondylolysis/ Spondylolisthesis and Degenerative Disc Disease	5241	10%	20050301	
			Left L5 Radiculopathy Associated with Postoperative Residuals, Fusion, L4-S1, with Spondylolysis/ Spondylolisthesis and Degenerative Disc Disease	8599-8520	10%	20050301	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8 	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070309 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  

Chronic Back.  Review of the MEB narrative summary (NARSUM) and the service treatment record (STR) indicated that the CI had episodes of back pain dating back to 1993.  An X-ray in February 2002 showed bilateral spondylolysis of L5 with grade I spondylolisthesis of L5-S1.  At an orthopedic consult on 3 October 2003, the CI was noted to have periodic radiation of the back pain into his buttocks.  He underwent an L4 to S1 interbody fusion in December 2003 (16 months prior to separation) with improvement, but he never had complete resolution of his radiculopathy or his neuropathic pain into his lower extremities.  He was compliant with his post-operative rehabilitation, but continued to have symptoms that precluded him from being able to wear his body armor or stand on his feet all day at work.  

At a physical therapy (PT) appointment in January 2004 (3 months post-surgery and 15 months prior to), the CI reported doing well, had mild back pain, and complained of left leg numbness and left foot hypersensitivity.  On examination he had normal gait, “full” forward flexion and extension of the back, and “motor and sensory intact” (with annotations of normal [5/5] strength and “c/o “numbness in the left leg”).    At a primary care visit in August 2004 (8 months after surgery and 8 months prior to separation), the CI had exacerbation of his pain (9/10) after 24-hour duty and was noted to have abnormal gait, abnormal range-of motion (ROM) of the back, and normal strength and sensation in the lower extremities.  At a follow-up appointment 2 weeks later, the CI had back flexion to 90 degrees (normal thoracolumbar flexion 90 degrees) and decreased sensation to touch on the left upper outer leg.  At another appointment on 7 October 2004, the CI had 6/10 pain, normal gait, mild decrease in sensation of the left leg in a L4-5 nerve root distribution, “abnormal” ROM of the back, and “abnormal” strength of the lower extremities (L4-5/S1 nerve roots, not further characterized).  A PT evaluation in November 2004 (5 months prior to separation) showed flexion of 50 degrees and a combined ROM of 150 degrees (normal 240); the CI had pain at end-range of all motions and complained of radiation of numbness and pain to the left leg to the toes.  

At the NARSUM exam on 8 November 2004 (5 months prior to separation), the CI had no paraspinal muscle tenderness or spasm and normal muscle strength with no sensory deficit of the lower extremities.  The examiner stated, “This gentleman had chronic low back pain and radiculopathy that failed nonoperative management for spondylolysis and spondylolisthesis.  He underwent L4 to S1 interbody fusion on 12/03 and had fair relief of his symptoms, but he never had complete resolution of his radiculopathy or his neuropathic pain into his lower extremities.”  

On the DD Form 2807-1, Report of Medical Examination, on 17 November 2004 (5 months prior to separation), the CI reported that he had numbness and “oversensitivity” in the left leg from the hip to foot.  The DD Form 2808, Report of Medical Examination, was accomplished on the same day and the CI had tenderness over the paraspinal muscles of the back, guarded movements secondary to pain, antalgic gait, and 30 degrees flexion.  Nerve studies (sensory/nerve conduction studies and electromyelogram) of the lower extremities were “mostly consistent with a left L5 radiculopathy.”  The indications for the study mentioned persistent low back pain radiating to the left lower extremity with associated numbness/tingling sensation.  The permanent profile (10 December 2004) had a diagnosis of “s/p lumbar spine surgery,” and did not specifically mention radiculopathy.  

At the VA Compensation and Pension (C&P) exam on 1 March 2005 (1-month prior to separation), the CI reported that his back pain was worse than it was before surgery, that it was chronic in duration, and that there was intermittent distribution into the left leg.  There were also paresthesias on the lateral aspect of the left leg down to the level of the foot.  On examination, under “Posture and Gait,” the examiner wrote, “normal posture, no assistive devices at this time.”  Forward flexion of the lumbosacral spine was 70 degrees and combined ROM was 190 degrees, with no additional limitations on repetitive use.  There was left lumbar tenderness, no muscle wasting, “good” muscle strength, no muscular spasms, and diminished sensation in the distribution of the L5 nerve root.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5241 (spinal fusion), citing antalgic gait, thoracolumbar ROM limited by pain, and no significant neurologic abnormality.  The VA rated the back condition at 10%, coded 5241, citing the ROM in the C&P exam; and rated the left L5 radiculopathy at 10% (mild), analogously coded 8599-8520 (incomplete paralysis of the sciatic nerve).  The Board noted some 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.  The DD Form 2808 reported antalgic gait and forward flexion of the back at 30 degrees, but these findings were not consistent with other exams proximate to separation.  Since the VA exam was relatively consistent with the PT evaluation (November 2004) and was the exam closest to separation, the Board concluded that it best represented the CI’s condition at his baseline and on his date of separation.  This exam supported a 10% disability rating under code 5241 (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or … combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, … muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour …).  There was not a pathway to a higher rating based on ankylosis, ROM, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour or incapacitating episodes requiring bed rest prescribed by a physician.  

The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated left leg symptoms (L5 radiculopathy) at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for the addition of a peripheral nerve rating disability in spine cases.  There was no description or contention, on any examination or the permanent profile, that this this issue (radiculopathy) specifically affected the CI’s ability to perform his duties.  Although abnormal strength of the leg (presumably left leg) was mentioned on 7 October 2004, it was not further described and not mentioned in any other examination, so it appeared to be a transitory phenomenon.  The sensory component in this case had no functional implications, and the pain component of a radiculopathy is generally subsumed under the general spine rating as specified in §4.71a.  Thus, there was no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board could not support a recommendation for an additional disability rating on this basis.  After due deliberation, considering all 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 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, possible PEB reliance on AR 635-40 for rating the chronic back pain condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the chronic back pain 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 20131027, 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, AR20150012485 (PD201301960)

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