RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02297
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080713

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Wheeled Vehicle Mechanic, medically separated for “L5-S1 spondylolisthesis…” with a disability rating of 20%.

CI CONTENTION:  His [back] condition continues to worsen and negatively impacts his daily activities.  He was not evaluated for PTSD.  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 -  20080429	VARD - 20081015	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Spondylolisthesis	5239	20%	Spondylolisthesis and Spondylosis, Lumbosacral Spine	5239	20%	20080811	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY: 

L5-S1 Spondylolisthesis.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 2006 with a gradual onset while he was deployed to Iraq.  The CI denied any specific injury or trauma.  Radiographic imaging of his back showed degenerative changes, a grade 1 spondylolisthesis (up to 25% slippage) and bilateral L5 spondylolysis (bilateral fracture of the pars section of the vertebrae).  A back brace was prescribed in March 2008 for intermittent use only.  Evaluation by neurosurgery resulted in no surgical indications.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  The MEB NARSUM examination on 11 April 2008, 3 months before separation, noted complaints of radiating pain from the hips down the thigh to the knee, weakness and cramping, and pain after walking 50 yards.  The examiner documented lumbar tenderness, muscle spasm, an antalgic gait, and painful motion.  Initial thoracolumbar flexion was 45 degrees (normal 90) and was reduced to 25 degrees after repetition.  Straight leg raise testing (for radiating symptoms) produced increasing back pain and was negative for radiculopathy.  Lower extremity strength, sensation and reflexes were normal.

At the VA Compensation and Pension (C&P) examination on 11 August 2008, a month after separation, the CI reported pain aggravated by prolonged sitting standing, forward bending and twisting the legs.  He also reported sharp pain shooting down to the legs, numbness and weakness.  The examiner documented wear of a back brace, tenderness, painful motion, stiffness and muscle spasm.  Thoracolumbar flexion was to 50 degrees.  There was further decrease in forward flexion after repetition with increase in pain and cramping, but the exact new measurement was not specified.  Lower extremity strength, sensation and reflexes were normal.

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the back condition 20% coded 5239 (spondylolisthesis or segmental instability), citing tenderness, slow antalgic gait and limitation of forward flexion.  The VA also rated the back condition 20% also coded 5239, based on the VA C&P examination a month after separation, citing limitation of flexion.  The Board noted the MEB NARSUM recorded the thoracolumbar flexion at 45 degrees which the PEB rated as 20%.  However forward flexion was recorded at 25 degrees after five repetitions, which meets the DeLuca Criteria threshold for a 40% rating.  The VA examiner documented a flexion that supported a rating of 20%; however, he also reported a further decrease in ROM without the specific quantification.  The Board agreed that this VA examination’s documentation of increased pain, cramping and unspecified flexion loss, after five repetitive ROMs, corroborates the DeLuca criteria found in the MEB NARSUM; and therefore, supports additional functional loss and a higher than 20% rating.  The Board determined both MEB NARSUM and VA examinations are probative and support a 40% rating based on DeLuca criteria which demonstrated additional loss of limitation of motion (flexion) due to repetitive motion.  There was no other evidence proximate to separation which would support a 40% or higher rating.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported radiating pain and weakness, however 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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, and in consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.40 and §4.45, the Board recommended a disability rating of 40% for the L5-S1 spondylolisthesis condition, coded 5239.

BOARD FINDINGS:  In the matter of the L5-S1 spondylolisthesis condition, the Board unanimously recommends a disability rating of 40%, coded 5239 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	
L5-S1 Spondylolisthesis	5239	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160008547  (PD201402297)

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 re­ characterize 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] [Reserve retirement].

           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:

CF:
( ) DoD PDBR 
( ) DVA