RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01699
BRANCH OF SERVICE:  Army	BOARD DATE:  20140801
SEPARATION DATE:  20090308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1 (25L/Cable Installer) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U3 profile (presumably administrative error since only the lumbar condition was referenced, consistent with an L3 profile) and referred for a Medical Evaluation Board (MEB).  Three separate diagnoses referable to the spine condition (“congenital L5 spondylosis”, “congenital L5 spondylolisthesis” and “low back pain”) were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB appropriately consolidated the MEB diagnoses into a single unfitting condition (“low back pain, evaluated analogous to back strain”), rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI listed “lower back pain, PTSD [post-traumatic stress disorder].”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting lumbar spine condition is addressed below.  The requested post-traumatic stress disorder was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  That, and any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20081125	VA – Derived from Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain ...	5299-5237	10%	Spondylolysis L5-S1 w/ Spondylolisthesis	5239	10%	STR	
Other x 0 (Not is Scope)	Other x 2		
RATING:  10%	Rating:  10%	
Derived from VA Rating Decision (VARD) dated 20090409 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations for correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

Lumbar Spine Condition.  The earliest entry in the service treatment record (STR) for back pain is from June 2007, noting an onset a few days earlier while weight lifting; although, subsequent visits make it clear that there was significant exacerbation a month later with heavy lifting in association with MOS field duty.  Radiographic evaluation in July 2007 demonstrated (bilateral L5) spondylolysis (arthritic changes and weakness of vertebral attachment processes, congenital in this case) and (L5-S1) spondylolisthesis (slippage of one vertebra over the other, resulting from the congenital spondylolysis in this case).  The back pain followed a waxing waning course, with pain scales ranging from none to severe (9/10); and, occasional notation of lower extremity radiation.  There were no reports of weakness or sensory complaints, and numerous normal neurologic exams are in evidence without any contrary entries.  Surgery was considered and reasonably deferred; and a trial of physical therapy and conservative measures was unsuccessful at restoring full MOS and general soldiering capabilities.  There are numerous STR entries documenting grossly normal range-of-motion (ROM), although some note painful motion, and two note decreased ROM (one of these severe, with flexion limited to 30 degrees by pain).  There are likewise numerous entries documenting normal gait, with none noting abnormal gait or contour; and, one specifying “no asymmetries of the lumbar spine.”  The narrative summary (NARSUM) documented daily constant pain rated 3/10, with exacerbations to 6/10 by “any physical stress or lifting,” which “occasionally shoots down the right leg.”  The physical exam noted a normal gait “with stiff back,” “minimal” tenderness, and “decreased normal lordosis” (no comment regarding spasm).  Neurological findings were normal.  Measured ROM was flexion to 90 degrees (normal) and combined ROM 230 degrees (normal 240 degrees).  The CI failed to show for his scheduled VA examination, so there is no VA rating evidence probative to separation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB conceded service aggravation for the pre-existing condition (congenital spondylolysis and spondylolisthesis); and, its 10% rating analogous to 5237 (lumbosacral strain) cited tenderness and concession of painful motion; although, it is noted that the NARSUM combined ROM of 230 degrees would also be an independent criterion for a 10% rating under the VASRD §4.71a general spine formula.  With the near normal ROM in evidence, the only route to a rating higher than 10% would be concession of abnormal contour based on the NARSUM comment regarding lordosis.  Members deliberated this option, but ultimately agreed that the §4.71a stipulation of “muscle spasm or guarding severe enough to result in ... abnormal spinal contour” was not satisfied by the balance of the NARSUM evidence or corroborated by any of the STR evidence.  The VASRD, furthermore, specifies “reverse lordosis” which is significantly more pronounced than the “decreased normal lordosis” cited by the NARSUM examiner; and, the minimal tenderness, fluid ROM and lack of documented spasm (barring the “stiff back” caveat to gait) from the NARSUM evidence is inconsistent with abnormal contour resulting from spasm or guarding.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher 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 lumbar spine condition.  The PEB designated code remains applicable.

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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record
		
XXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXX AR20150006333 (PD201401699)

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