RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01481
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051028

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Infantryman, medically separated for “chronic back pain, without significant neurologic abnormality, status post L5-S1 fusion in treatment of L5-S1 spondylolisthesis and degenerative disc disease,” with a disability rating of 10%.

CI CONTENTION:  The CI’s condition continues to worsen and negatively impact daily activities.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20050927	VARD - 20060713	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Without Significant Neurologic Abnormality S/P Fusion….	5241	10%	Degenerative Disk Disease Lumbosacral Spine S/P Spinal Fusion…	5242-5243	20%	20060517	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Back Pain Without Significant Neurologic Abnormality S/P Fusion.  The Service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a history of chronic low back pain diagnosed after radiographic evaluation in March 1998 that documented L5 spondylolysis (fracture of the pars interarticularis; pars defect) with grade I spondylolisthesis (slippage) of L5-S1.  The CI sustained a subsequent back injury from an IED blast in September 2004.  Surgery for spinal fusion was performed in March 2005 (5 months before separation).  At a neurosurgery consultation in August 2005, 2 months before separation, the CI reported pain aggravated by bending, kneeling, lifting, squatting, twisting, sitting and standing for prolonged periods of time; and night awakenings.  He also reported numbness, tingling and weakness.  The examiner documented a range of motion (ROM) that was “decreased” to flexion, extension, side bending, and rotation.  There was a normal gait with normal strength, sensation, and reflex testing, and no evidence of radiculopathy on nerve tension testing.  At an orthopedic visit 2 weeks later, the examiner documented an abnormal gait with no muscle spasm.  There was decreased strength (4/5) of the left lower extremity; normal sensation and reflex testing; and no evidence of radiculopathy on nerve tension testing.  At a physical therapy visit a week later, the examiner documented pain limited flexion of 20 degrees (normal 90), and extension of 5 degrees (normal 30), with a total combined ROM of 100 degrees (normal 240).  

At the MEB examination dated August 2005, 2 months prior to separation, the CI reported that he had fractured his L5-S1 vertebrae in an IED attack and had numbness and tingling in his right leg.  The examiner documented lumbosacral paraspinal tenderness, pain-limited flexion and extension, with “decreased” flexion, extension, lateral flexion and rotation.  There was an antalgic gait with 4/5 strength of the left lower extremity.  Straight leg raise testing (for radicular symptoms) was negative.  There was no STR documentation of physician prescribed bed rest for incapacitating episodes.  The MEB NARSUM examination on 12 September 2005 (a month prior to separation), the CI reported continued back pain since surgery with weakness of the left leg and numbness in the right leg.  The examiner documented “distress” arising from a chair, an antalgic gait, and difficulty walking after sitting for an extended period of time.  There was no muscle spasm and straight leg raise testing (for radicular symptoms) was negative.  There was “4 to 5” strength of the left leg and “3/5” strength of the right leg with inability to toe and heel walk attributed to leg weakness.  Sensation and reflexes were normal.  

At the VA Compensation and Pension (C&P) examination in May 2006, performed 7 months after separation, the CI reported numbness of the anterior thighs bilaterally with weakness and easy fatigability of the left leg.  He reported leg buckling, and stumbling, but denied falling and use of assistive walking devices.  He denied problems with his activities of daily living and his occupation as a full time security guard.  He further denied any significant flare ups because he “[did] not have much in the way of pain.”  The examiner documented an antalgic gait, flexion of 70 degrees, extension of 20 degrees, and lateral bending of 20 degrees; all specifically “limited by stiffness, but not significant pain.”  Strength of the left lower extremity was rated at 3/5 compared to the right leg with no change after repetition.  Sensation was normal.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5241 code (spinal fusion), citing localized tenderness and range-of-motion limited by pain.  The VA (Rating Decision dated 29 June 1999) assigned an initial 0% rating coded 5292 (limitation of motion, lumbar) with subsequent increase to 20% (Rating Decision dated 18 March 2000) for the low back condition analogously coded 5295 (lumbosacral strain).  Based on the new rating criteria (established in September 2003) and the VA C&P exam dated on 17 May 2006, the CI did not meet the 20% disability criteria; however the VA did not change the rating.  The Board’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value is placed on evidence most proximate to that time.  There was an entry by physical therapy (PT) 2 months before separation that documented a forward flexion of the thoracolumbar spine to 30 degrees or less (August 2005) in support of a 40% rating.  This exam was considered to have high probative value due to the repeated measurements made and proximity to the date of separation.  The MEB examination was performed at the same interval (and the day after the PT exam) and did not document any thoracolumbar measurements; however, did document an antalgic gait.  The NARSUM examiner documented an antalgic gait with difficulty walking and arising from a chair, and no ROM measurements.  The VA C&P exam annotated that repetitive measurements were made but was performed 7 months after the date of separation; and, therefore, it was considered to have lesser probative value than the pre-separation PT exam.  Without evidence to the contrary, the Board considered the PT exam to have the highest probative value and met the criteria for a 40% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back condition, coded 5241.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radicular pain and left lower extremity weakness treated with surgery.  There were symptoms of radiating pain and lower extremity weakness documented in the treatment records.  Exams indicated normal sensation and reflexes with decreased strength and antalgic gait, none of which were documented to affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain and Degenerative Disc Disease S/P Lumbar Fusion	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140318, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

28 JUL 2016

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,AR20160006078 (PD201401481)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual's original medical separation for disability with severance pay.

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:

a. Providing a correction to the individual's separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with
severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:
Enclosure
CF:
( ) DoD PDBR
( ) DVA