RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00079
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070411

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Fire Support Specialist) medically separated for a lumbar spine condition.  The lower 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).  “Chronic low back pain and right posterior leg pain, status post lumbar fusion of L5-S1” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition of post-traumatic stress disorder (PTSD) for PEB adjudication.  The informal PEB adjudicated “spondylolisthesis, causing chronic low back pain, unrelieved by spinal fusion” as unfitting, rated 0%.  The PTSD condition was determined to be not unfitting.  The CI made appeals and was medically separated. 

CI CONTENTION:  The CI contends his lumbar spine rating should have been higher.  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 (including PTSD) 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:  
   
Service IPEB – Dated 20070213	VA* - 3 Months Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis 	5239	0%	Post-Operative Spinal Fusion	5243	40%	20070717	
   Other MEB/PEB Conditions x 1  (Not in Scope)	Other x 7		
RATING:  0%	COMBINED RATING:  60%	
* Derived from VA Rating Decision (VARD) dated 20070823 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborated the history detailed in the narrative summary (NARSUM) of onset of radiating back pain with lifting in 2001, which was exacerbated by a vehicular accident in 2005.  Imaging revealed spondylolisthesis (slippage of one vertebra over the other) and disc disease (L5/S1 with right neural encroachment) following fusion surgery performed 14 months pre-separation in February 2006.  Although initial results were favorable, the pain returned and a MEB was initiated.  There are post-operative STR entries documenting normal neurological findings (5/5 strength), but none directly probative to range-of-motion (ROM).  There is no STR evidence of abnormal gait or contour, and none for incapacitating episodes.

The NARSUM was conducted 3 months pre-separation on 18 January 2007 and documented constant pain rated 5/10 with right lower extremity (RLE) radiation (“tingling” but no documented subjective weakness) and noted functional limitations with running, lifting, and prolonged sitting, walking or standing.  The NARSUM physical examination recorded a normal gait and spinal contour, the absence of tenderness (no documented spasm), and normal neurological findings (5/5 strength).  The NARSUM-measured ROM was flexion to 40 degrees (normal 90) and combined ROM of 180 degrees (normal 240), specifying limitation by pain.  The average of 3 measurements and use of a goniometer were documented.  The examiner also documented indicators of unreliable findings, “distraction and pain behaviors.”  

A VA Compensation and Pension (C&P) examination was conducted 3 months post-separation on 17 July 2007 and there was no documentation of interim injury or other exacerbation of the condition.  The examiner documented constant pain of “variable intensity” with “shooting pains into the legs” but no subjective weakness and noted functional limitations with prolonged walking, standing or sitting.  The VA physical examination recorded a normal gait, the absence of tenderness (no documented spasm), and normal neurological findings (strength, reflexes, and sensory).  The VA-measured ROM was flexion to 30 degrees and combined 125 degrees, specifying limitation by pain.  The average of 3 measurements and use of a goniometer were not specifically documented.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 5239 (spondylolisthesis) was supported by AR 635-40, but was not consistent with VASRD §4.71a criteria for the Service ROM evidence, the latter supporting a 20% rating per the §4.71a general spine formula.  The VA’s rating under 5243 (intervertebral disc syndrome) was based on the C&P flexion to 30 degrees which is the spine formula threshold for 40%.  There is no documentation of incapacitating episodes which would support a higher rating under that formula.  There is a disparity in this case between the NARSUM and later C&P ROM findings with obvious implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  The NARSUM and VA C&P examinations were of the same temporal proximity to separation, although the NARSUM ROM evaluation was possibly of a higher quality given the documented compliance with VASRD §4.46 (accurate measurement).  The overall clinical acuity (single level disc disease without complications) and functional capabilities (documented limitations, normal gait) are more consistent with the Service ROM, as are the absent findings for spasm or spinal contour disturbance typically accompanying severe ROM limitation.  Members also considered the possibility of unreliable findings as documented by the NARSUM examiner and the lack of a reasonable clinical explanation for the deterioration of ROM in the interval between the examinations.  Members agreed, therefore, that the Board’s recommendation was more reasonably and fairly premised on the Service evidence.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition, preferring code 5239 for its clinical specificity.
The Board considered whether additional rating could be recommended for the associated RLE radiculopathy at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no motor deficit in this case, and the equivocal sensory deficit had no functional implications.  Members thus agreed that there was insufficient evidence of separately ratable functional impairment from the residual radiculopathy, and the Board cannot support a recommendation for additional disability rating on this basis.  

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, possible PEB reliance on AR 635-40 for rating was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine 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	
Spondylolisthesis and Disc Disease, Lumbar Spine	5239	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, with attachments
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 XXXXXXXXXXXXXXXXXX, AR20160002012 (PD201400079)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA