RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX                                                                         CASE:  PD-2013-01989
BRANCH OF SERVICE:  Army                                                                            BOARD DATE:  20140723
Separation Date:  20051101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (96B20/Intelligence Analyst) medically separated for chronic radiating low back pain.  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).  The back condition, characterized as “chronic low back pain”, “spondylolisthesis L5 on S1” and “bilateral pars interarticularis defects,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic radiating low back pain (LBP)….pars defect and anterolisthesis at L5/S1” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.

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 back condition is addressed below and 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 20050818	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5239	10%	Degenerative Disc Disease (DDD) with Spondylolysis L5/S1	5242-5239	20%	20051201	
Other x 0 (Not in Scope)	Other x5	
Rating:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20060217 (most proximate to date of separation).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veteran Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12 months interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

LBP Condition.  There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB 3.3 Mos. Pre-Sep	VA C&P 1. Mo. Post-Sep	
Flexion (90 Normal)	50	60	
Combined (240)	185	170	
Comment	Diffuse tenderness to palpation & muscle spasm lower lumbar region; decreased strength right hip & left thigh; Normal strength both ankles; Pos. asymmetry in reflexes	Normal gait; No tenderness or spasm; Normal strength; Neg. straight leg raise bilaterally; No atrophy or radicular deficit	
§4.71a Rating	20%	20%	

The CI developed atraumatic LBP in January 2004.  The CI initially felt a “pinch” and under physical examination, findings of mild discomfort, flexion to 80 degrees, minimal tenderness to palpation and spasm in the right lumbar paraspinal muscles.  He was treated conservatively with a non-steroidal anti-inflammatory drug (NSAID) and benzodiazepine (Valium), ice and heat.  A magnetic resonance imaging (MRI) was done for LBP midline pain, worse with cough or valsalva and demonstrated Grade I anterolisthesis of L5 on S1 due to bilateral pars interarticularis defects.  The CI was referred to physical therapy (PT) because of an inability to stand up straight and pain worsening with coughing or sneezing.  PT evaluated the CI and issued a cane to assist with ambulation.  The CI continued with chronic LBP and a repeat MRI demonstrated an anterior subluxation of L5 on S1.  An electromyelogram (EMG) demonstrated a normal nerve conduction study of the bilateral lower extremities.  An EMG was not done as there was no complaint of radicular pain, numbness or weakness.  The CI was aero-evacuated to a CONUS medical facility for further treatment of the chronic LBP.  The neurosurgeon documented increased pain in both frequency and intensity.  Physical examination findings were flexion 70 degrees and strength 5/5 with pain exacerbated by flexing the right hip against resistance.  The CI was given a permanent L3 Profile for stable Grade 1 spondylolysis and Code C limitations in running, marching, standing for long periods, with additional restrictions noted.  The commander’s statement documented that the CI walked “gingerly,” was in constant pain throughout the duty day and he was unable to perform his MOS duties.  The MEB narrative summary (NARSUM) exam approximately 3 months prior to separation documented constant severe LBP both in the morning when he woke up that interfered with his ability to sleep at night.  He reported pain with standing for prolonged periods of time and with any physical activity.  He managed his pain level with narcotic medication.  The MEB NARSUM physical examination findings are summarized in the chart above.  

The orthopedic VA Compensation and Pension (C&P) exam approximately a month prior to separation documented that the CI underwent an epidural steroid injection in August 2005. However, the CI reported LBP aggravated by prolonged standing, walking, bending, stooping and lifting heavy weight.  The VA C&P examination findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the LBP condition as 5239, spondylolisthesis or segmental instability and rated at 10%.  The VA applied the combination code of 5242 (degenerative arthritis of the spine) analogous to 5239 and rated the DDD with spondylolysis and grade one anterolisthesis, L5/S1 condition at 20%.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  All exams proximate to separation met the 20% rating criteria for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic back pain 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.  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 Chronic Low Back Pain condition, the Board unanimously recommends a disability rating of 20%, coded 5239 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	
Chronic Low Back Pain	5239	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, 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 XXXXXXXXXXXXXXXXX, AR20150002526 (PD201301989)

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