RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	               CASE:  PD-2014-00797
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty (Wheeled Vehicle Repairer) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Chronic low back pain, L5-S1 posterior spinal fusion was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated back pain with L5/S1 fusion for spondylolisthesis as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Rating was not full and complete pertaining to back injury.  Other problems are and were present at time of rating that were not considered.  I am rated 90% unemployable.”

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 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 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 20040511	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain with L5-S1 Fusion for Spondylolisthesis	5241	10%	Post Traumatic DJD of Lumbar Sacral Spine with Spondylolisthesis, status post Lumbar Fusion L5-S1	5003-5239	20%	20041020	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 9	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20041221 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic Back Pain with L5-S1 Fusion for Spondylolisthesis.  The first record in evidence for the low back pain (LBP) condition is an orthopedic note dated 4 April 2002.  The CI reported a 2-3 month history of LBP without antecedent trauma.  He was noted to have a normal gait and posture, a normal neurological examination, and full range-of-motion (ROM).  X-rays done that day showed a spondylolisthesis at L5-S1 (a slippage of one vertebra over another and out of normal vertical alignment), a narrowed disc at that level as well, and there was also evidence of spondylosis (degenerative changes of the joints between the vertebrae at L5.  He was treated with medications, duty restrictions, and physical therapy without resolution of his pain.  He reported right leg radicular symptoms at primary care appointment on 13 August 2002 and was referred for an MRI.  This showed the previously noted pathology and was negative for a herniated disc.  He was then referred to a civilian orthopedist and seen on 31 October 2002.  The CI reported that the LBP began after a 30km road march and radiated into the right thigh.  He had a palpable step off at L4-5/L5-S1, but a normal gait.  Weakness was present on the right.  Fusion at L5-S1 was recommended and performed on 4 December 2002.  He then underwent rehabilitation.  Six months after the surgery, he deployed (8 May 2003) with an L2 profile.  He presented with recurrent pain on 13 July 2003 and was issued additional duty restrictions.  He was thought to have a failed fusion when seen on 16 September 2003 and redeployed back to his home station for definitive treatment.  He was referred to neurosurgery on 16 October 2003.  He had some restriction in the ROM, diminished reflexes, and variable decreased sensation on the right.  An X-ray of the lumbar spine that day showed a stable repair.  A computed tomography (CT) scan on 7 November 2003 showed a solid fusion, but a disc herniation at L5-S1 on the right as well as bilateral spondylolisthesis at L5-S1.  Repeat X-rays with flexion extension views on 8 January 2004 showed a solid fusion without instability.  A CT myelogram (a dye study to look at the spinal cord and surrounding space as well as the bony structure) on 9 January 2004 noted a mild extension of a screw on the left at L5, the previously noted spondylolisthesis, and the disc bulge.  The latter did not compromise the spinal cord or nerve roots.  The CI was again seen in neurosurgery on 11 February 2004 and reported continued LBP with radiation down the back to the right leg to the knee.  He denied bowel or bladder incontinence.  The ROM was noted to be full except for extension which reproduced his pain.  His gait was symmetrical and ‘heel to toe” was without difficulty.  Strength was normal.  Sensation was reduced on the right in a L3-4 dermatomal pattern.  Reflexes were 2+ for the knees and 1+ for the ankle, but symmetric bilaterally.  Trigger points were present in the right paralumbar muscles.  A trial of epidural steroid injections (ESIs) was recommended.  On the DD Form 2808, Report of Medical Examination, prepared 12 April 2004, 4 months prior to separation, the CI reported numbness in the right foot and loss of strength in the right leg.  The MEB physical examiner noted that flexion was limited to 70 degrees and painful.  The neurological examination was checked ‘normal.’  The MEB narrative summary (NARSUM) was dated the same day.  The CI had a normal gait and was in no apparent distress.  He was tender to palpation along the back muscles and scar.  Sensation was diminished in an S1 distribution.  Motor function was normal other than a slight decrease in the elevation of the right great toe (typically an L5 innervation).  The ROM was performed in physical therapy the next day and was reduced as recorded below.

At the VA Compensation and Pension (C&P) examination performed on 20 October 2004, 2 months after separation, the CI reported persistent pain.  He denied incontinence and was able to walk 4 blocks before stopping from pain.  The neurological examination was normal.  The gait was not recorded, but spasm was present.  The ROM was reduced as charted below with another 5-10 degree loss with repetition.  A C&P for his hand and fingers was done on 1 February 2005, 6 months after separation.  The CI was noted to be comfortable and to have a normal posture and gait.  The neurological examination was normal.  It was noted that he was a manager in a muffler shop and able to meet the requirements of his job without taking off significant amounts of sick leave.
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 NARSUM
~4 Mo. Pre-Sep	VA C&P General
~2 Mo. Post-Sep	
Flexion (90 Normal)	85 (85/83/82)	60	
Combined (240)	160	145	
Comment	No comment on pain	Additional 5-10 degree loss with repetition	
§4.71a Rating	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5241 (Spinal fusion).  The VA rated the back at 20%, using the dual code 5003-5239 (Degenerative arthritis and spondylolisthesis).  The ROM recorded by the VA C&P examiner supports a 20% rating.  However, the ROM recorded prior to separation consistently supported no more than a 10% rating.  These were also thought to be more consistent with the normal gait recorded before and after separation as well as his occupation as a manager in a muffler shop.  The Board also noted that the neurological examination was variable in the deficits observed and at times normal.  The presence of a separately unfitting radiculopathy at separation was not supported by the evidence available for review.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  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.  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 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 20140214, 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 XXXXXXXXXXXXXXXXXX, AR20160002768 (PD201400797)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA