RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00976	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080608		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Paralegal Specialist) medically separated for a low 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).  The back condition, characterized as “low back pain secondary to bilateral L5 spondylolysis with grade I spondylolisthesis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (right shoulder strain and esophageal reflux) as meeting retention standards.  The informal PEB adjudicated the low back pain as unfitting, rated 0%, referencing AR 635-40, paragraph B-15 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and not ratable.  

CI CONTENTION:  His low back 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 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 20080212	VA – 2 Days Pre-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5 spondylolysis with grade I spondylolisthesis	5239	0%	Lower Back Condition, DJD w/Spondylolisthesis L5-S1	5237-5243	0%	20080606	
Other x 0 (Not in Scope)	Other x 4	
Rating:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20080807 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Bilateral L5 Spondylolysis With Grade I Spondylolisthesis.  The service treatment record (STR) documented that the CI injured his back during a training exercise in August 2005 (11 months after entry).  Radiographic studies in January 2006 documented slippage of the vertebra (grade I spondylolisthesis of L5-S1), bilateral fractures (spondylolysis) at the L5 level and narrowing of the disc space.  Further magnetic resonance imaging in April 2006 demonstrated bulging discs at L4-L5 and L5-S1 levels without nerve root compression.  Chiropractic and physical medicine evaluations documented tenderness on palpation of the L4 and L5 spinous processes, intermittent misalignment of the spine, flexion to 90 degrees (normal), and extension to 10 degrees (normal 30).  Clinical entries documented painful motion (May, September 2006; November 2007).  On the MEB DD Form 2697, Report of Medical Assessment, dated 17 December 2007 (6 months prior to separation), the CI reported “ongoing problems” in the lower back with “periodic” tingling in the right leg.  The MEB examiner documented full range-of-motion (ROM) of the lumbar spine, normal gait, negative straight leg raise; no tenderness, spasm, guarding, step-off, or scoliosis; normal lower extremity strength, sensation and reflexes.  Radiographic evaluations (October and November 2007) documented “no change when compared to a prior study done in 2006.”  

The MEB narrative summary (NARSUM) exam was performed 3 January 2008 (5 months prior to separation).  The CI reported “constant dull aching pain at the right lower lumbar spine at a pain range of 2-10/10 that [was] worsened by running, sitting or standing in place for more than 2 hours, or lifting more than 60 pounds.”  Examination of the lumbar spine showed “full” ROM.  There was no tenderness, spasm, guarding, or abnormal spinal contour; normal gait; and no use of ambulatory aids.  The examiner opined that there had been “no change in his symptoms for the past 6 to 8 months;” and stated “no change radiographically for over 1 year.”  There was no STR evidence of more significant ROM limitations, neurological deficits, or periods of incapacitation.  

At the VA Compensation and Pension (C&P) exam dated 6 June 2008 (2 days prior to separation), the CI reported “constant soreness…aggravated from running or vigorous physical exertion,” that flare-ups result in “stiffness without change in ROM,” and that he was able to work and perform his routine daily activities.  He denied medications, assistive devices, and incapacitating episodes in the past 12 months.  The examiner documented full lumbar ROM; “mild loss of lumbar lordosis, tension of the lower back without spasm;” and that all movements were “somewhat slow and stiff.”  The examiner specifically stated that there was “no pain on initial movement or continued motion and repetitive [motion] did not produce pain, additional symptoms, or change in ROM.”  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the low back condition as unfitting, rated 0%, coded 5239 (spondylolisthesis or segmental instability), based on findings of “full ROM, no tenderness, spasm, guarding or abnormal spinal contour” citing VASRD §4.31 and AR 635-40 paragraph B-15 (for 0 percent ratings).  On two similar VA rating decisions (dated 7 August 2008 and 10 November 2008), the low back condition was rated 0% and coded 5237-5243 (lumbosacral strain-intervertebral disc syndrome) based on lack of painful motion and no loss in ROM.  There was no consistent evidence of painful motion; no documentation of spasm, guarding, or abnormal spinal contour; no significant ROM deficits; and consistently normal gait.  There was no evidence, therefore, in support of a rating of 10%.  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, PEB reliance on the VASRD and AR 635-40 for rating the low back condition was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the low back 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 20140218, 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, A20160002564 (PD201400976)

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