RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01938
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090702  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Heavy Equipment Operator) medically separated for “low back pain, Grade 1 spondylolisthesis [slippage of one vertebra over the other] L5-S1, symptomatic,” rated 10%.  

CI CONTENTION:  The CI states that his back condition has worsened and that it was erroneously rated as not combat related.  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 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 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 20090514	VA* - (4+ Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5239	10%	Grade I Spondylolisthesis, L5/S1	5242	10%	20090918	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20091008 (most proximate to date of separation [DOS]). 

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of back pain after a fall from a vehicle in Iraq in 2005.  The pain persisted after re-deployment.  There were some initial bilateral radicular symptoms (no weakness or objective sensory deficits) that resolved with time.  Magnetic resonance imaging revealed degenerative disc disease (L5/S1 without neural encroachment) and spondylolisthesis (as per the MEB submission); and, electrodiagnostic (EMG) testing was normal.  A neurosurgical consultant opined that surgery was not indicated, and continued conservative treatment was unsuccessful at restoring full MOS functionality.  All outpatient STR evidence probative to rating was consistent with that portrayed by the NARSUM, and there was no STR evidence of incapacitating episodes.    

The NARSUM was conducted 19 March 2009 (6 weeks pre-separation) and documented constant pain rated 3/10 (radicular symptoms resolved) limiting running, lifting, walking over 30 minutes, standing longer than an hour, and sitting more than 20 minutes.  The NARSUM physical examination recorded no spasm (normal gait and contour documented in STR) and normal neurological findings (sensation, reflexes, and strength).  The NARSUM measured range-of-motion (ROM) was flexion to 90 degrees (normal) and combined ROM of 235 degrees (normal 240).  A VA Compensation and Pension (C&P) examination was conducted 18 September 2009 (4½ months post-separation) and documented continued “mild” pain with occasional radiation to the right leg, noting that the CI was employed as a foundry worker with no incapacitating episodes. The VA physical examination recorded a normal gait and contour, the absence of tenderness or spasm, and normal neurological findings.  The VA measured ROM was 90 degrees flexion and 240 degrees combined, specifying the absence of painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5239 (spondylolisthesis) was consistent with VASRD §4.71a criteria for the Service ROM evidence (conceding painful motion) and other ratable findings.  The VA’s 10% rating under code 5242 (degenerative arthritis of the spine) invoked “painful or limited motion” (albeit not specifically supported by the documented C&P findings).  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or contour to support a 20% rating; no evidence for ratable peripheral nerve impairment which would provide for additional rating; and, no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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.

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.  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 20140430, 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 XXXXXXXXXXXXXXXXXXXX, AR20160003412 (PD201401938)

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