RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01339
BRANCH OF SERVICE:  Army	BOARD DATE:  20150507
SEPARATION DATE:  20091111  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E-4 (Generator Mechanic) medically separated for a lumbar spine condition.  The 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 conditions “lumbar back pain,” “bilateral L5 spondylolysis [degenerative changes and weakness of vertebral attachment processes],” and “Grade 1 L5-S1 spondylosisthesis [slippage of one vertebra over the other, due to spondylolysis in this case]” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB additionally forwarded “spina bifida occulta” as meeting retention standards.  The Informal PEB (IPEB) appropriately consolidated the back pain with the associated spondylolysis/spondylosisthesis etiologies as a single unfitting condition, rated 20%, referencing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The spina bifida occulta condition was determined to be not unfitting.  The CI made no appeals and was medically separated.   

CI CONTENTION:  “Hard to do everyday Activities due to Back Pain.  Hard to hold my son, and do thing with him.  Can’t sleep at night.  Restless leg syndrome.  Difficult to perform intamicy.”  [sic] 

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 

IPEB – Dated 20090911	VA* (6 Wk. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain ... (Subuming Spondylolysis/Spondylosisthesis)	5239	20%	Lumbar Spine Spondylolysis ... (Subsuming Bilateral Radiculopathy)	5239	20%	20091228	
Other x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20100106 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition with Subsumed Spondylolysis and Spondylosisthesis.  The earliest entry in the service treatment record (STR) for this condition is from March 2009 (8 months prior to separation) and documents recurrent back pain related to fall during training 2 months earlier.  Imaging (X-ray followed by magnetic resonance imaging) demonstrated spondylolysis (bilateral L5), spondylosisthesis “very subtle Grade I” at L5, and normal discs.  Additionally identified was spina bifida occulta which was “considered a normal variant,” and was of no neurologic or mechanical consequence in this case.  The pain did not improve adequately with conservative measures, and surgery was not recommended.  Various STR entries report bilateral pain radiation (proximal L5/S1 dermatomes); but, there were no sensory symptoms or subjective weakness; and, numerous normal neurological examinations are in evidence (with none to the contrary).  Various STR entries document normal gait (none to the contrary), and no entries document abnormal spinal contour.  There is STR documentation of only a day of incapacitation.  The narrative summary (NARSUM) was conducted 10 August 2009 (3 months prior to separation), and documented “constant” back pain (with bilateral radiation as per STR entries and with no motor or sensory symptoms noted) rated 8/10 and limiting “bending, jumping, twisting, running, kneeling, and prolonged sitting or standing.”  The NARSUM physical exam recorded a normal gait, tenderness, spasm (on deep palpation), and normal neurological findings (5/5 strength, no comment sensory).  The NARSUM measured ROM was flexion to 65 degrees (normal 90) and combined ROM of 215 degrees (normal 240). 

A VA Compensation and Pension (C&P) examination was conducted 28 December 2009 (a month after separation), and documented “constant, daily” pain (same bilateral radiation as above) rated 5-7/10 and limiting “lifting, carrying, driving for more than a half hour [and] prolonged sitting.”  There was mention of a recent exacerbation of the radicular symptoms (with a sensory component), which had resolved and was considered to be an isolated occurrence.  The VA physical exam recorded a normal gait and spinal curvature, with guarding but no spasm, and detailed normal neurological findings (5/5 motor, intact sensory, symmetric reflexes).  The VA measured ROM was 60 degrees flexion and 200 degrees combined.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated under code 5239 (spondylolisthesis).   The ratable findings from the NARSUM (corroborated by the STR) and Service ROM evidence are consistent with a 10% rating IAW VASRD §4.71a.  It should be noted that the PEB’s DA Form 199 decision cited that evidence, and documented a 10% determination in the narrative; but, 20% was entered in the official rating column.  It is quite possible that the latter represents an administrative error with an intended rating of 10%; but, members agreed that the Board must treat the 20% entry as administratively final; and, DoDI 6040.44 prohibits recommending a lower rating.  The VA’s 20% rating was consistent with the §4.71a criterion for flexion.  There is no documentation to support a higher rating under the §4.71a formula for incapacitating episodes.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the associated radiculopathies in evidence at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The transient sensory symptoms documented in the C&P examination had no functional implications, and no objective motor weakness is in evidence.  There is thus no evidence of ratable functional impairment from the residual radiculopathies, and the Board cannot support a recommendation for an additional Service disability rating on this basis.  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 of the lumbar spine condition.

With regards to the spina bifida occulta condition, adjudicated separately as not unfitting, the evidence well establishes that it was as an incidental X-ray finding which did not contribute to the disability.  Members thus agreed that it did not impact fitness, and furthermore does not constitute a ratable condition in this case.  There is, therefore, no rationale for recommending a change in the PEB determination.

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 lumbar spine 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 20140311, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013439 (PD201401339)

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:

Encl	XXXXXXXXXXXXXXX
		Deputy Assistant Secretary of the Army
			(Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA