RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00600
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20040406

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Light Weight Vehicle Mechanic) medically separated for chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “L5 pars fracture status post L-5-S-1 R/sided laminotomy and diskectomy,” “L5-S1 degenerative disc“ and “L5-21 spondylolisthesis” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the back pain condition as unfitting, rated 10%, citing application of the AR 635-40.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and 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, which operates 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 20040210	VA* - (~1 Day Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain…	5243-5239	10%	HNP, L5-S1 with DDD and DJD…	5237	20%	20040315	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20040622 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The Board noted that the L5 pars fracture status post L5-S1 right sided laminotomy and discectomy, L5-S1 degenerative disc, and L5-S1 spondylolisthesis all converge on a common disability, back pain, and the combined disability is rated.  Separate ratings would violate VASRD §4.14 (avoidance of pyramiding).  

Chronic Subjective Back Pain Condition due to Degenerative Disc Disease (DDD) and L5-S1 Spondylolisthesis.  The record showed that the CI had long standing low back pain (LBP) going back to at least 1992 which was associated with a L5-S1 spondylolisthesis (sliding of one vertebra over the other).  His symptoms progressed despite treatment with duty modifications and medications.  On 16 March 2000, he had a right L5-S1 discectomy for a L5-S1 herniated disc.  He initially did well, but his symptoms recurred over time and he was no longer able to meet duty requirements including the wear of body armor.  A primary care note dated 17 October 2003 documented painful motion with flexion limited to 65 degrees, but an intact neurological examination.  The narrative summary was dated 13 December 2003.  It noted that no neurological deficit was present and the range-of-motion (ROM) was reduced as charted below.  The examiner, an orthopedic surgeon, noted that the CI had declined additional surgery which was thought to be a reasonable decision.  At the MEB examination on 23 December 2003, the CI reported constant pain in his lower back and numbness and tingling in the lower legs.  The MEB physical examiner noted that the ROM was decreased, but did not quantify this.  The neurological examination was checked “normal.”  The CI had formal ROM measurements in physical therapy on 2 February 2004.  These were limited by pain and are charted below.  

At the VA Compensation and Pension (C&P) examination performed a day prior to separation; the CI reported a 15-year history of LBP.  Incapacitation was not recorded.  On examination, the gait, posture, and neurological examination were normal.  Spasm and tenderness were absent.  The ROM was reduced as charted below.  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.

DOS 20040406
Thoracolumbar ROM
(Degrees)	MEB ~4 Mo. Pre-Sep
(20031212) p.88	PT ~1 Mo. Pre-Sep
(20040202) p.27	VA C&P ~1 Mo. Pre-Sep
(20040315) p.199	
Flexion (90 Normal)	35	35,40,40	60	
Combined (240)	---	---	210	
Comment	No comment on pain	Limited by pain	Discomfort with flexion	
§4.71a Rating	20%	20%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, coded 5243-5239 (intervertebral disc syndrome and spondylolisthesis) with application of AR 635-40.  The VA rated the back at 20%, coded 5237 (lumbosacral strain).  All three ROM measurements which are proximate to separation support a 20% rating.  The Board found no route to a higher rating.  The Board consider the codes used and determined that either 5243 or 5239 described the pathology present, but that the latter code better described the disability in the absence of incapacitation.  There was no evidence that an unfitting radiculopathy was present at separation.  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 back pain condition, coded 5239.  

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, PEB reliance on AR 635-40 for rating the back pain condition was operant in this case and the condition was adjudicated independently of that regulation by this Board.  In the matter of the 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:  

CONDITION	VASRD CODE	RATING	
Chronic Subjective Back Pain…	5239	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160000250 (PD201400600)

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:

CF: 
(  ) DoD PDBR
(  ) DVA