RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02504
BRANCH OF SERVICE:  Army	Separation Date:  20091125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for lumbar spine and low right leg pain condition.  The conditions 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 “spondylolisthesis with persistent anterolisthesis,” and “L5 lumbar radiculopathy,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (“mild chronic neck pain, normal C-spine series,” “history of neutropenia, leukopenia, and anemia,” ”history of osteomyelitis after lumbar spine and wound infection in the back,” “nephrolithiasis, nonobstructive, asymptomatic,” and “nicotine dependence”) as medically acceptable, for PEB adjudication.  The Informal PEB adjudicated “spinal fusion, status post (S/P) two fusions of L5-S1,” and “radiculopathy, right L5,” as unfitting, rated 10% and 10% with application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requests consideration of all of his conditions.  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/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 20090908	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion, S/P Two Fusions	5239-5241	10%	Lumbar Intervertebral Disc Syndrome with Grade 2 anterolisthesis L5-S1 S/P , fusion arthrodesis of S1	5239-5241	40%	20100211	
			Surgical Scar Lumbar Spine	7805	0%	20100211	
Radiculopathy, Right L5	8799-8720	10%	Radiculopathy Right Lower Extremity (LE)	8520	10%	20100211	
			Radiculopathy Left LE	8520	10%	20100211	
Mild Chronic Neck Pain	Not Unfitting	No VA Placement	
History of Neutropenia, Leukopenia, and Anemia	Not Unfitting	No VA Placement	
Internal Tibial Torsion…	Not Unfitting	No VA Placement	
History of Osteomyelitis…	Not Unfitting	No VA Placement	
Nephrolithiasis…	Not Unfitting	No VA Placement	
Other x 1 (Not In Scope)	Other x 8 (Not In Scope)	
RATING:  20%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20100726 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY  

Low Back Condition.  The CI developed low back pain (LBP) with right lower extremity radiculopathy in January 2008.  Radiographic evaluations demonstrated a herniated lumbosacral disc and 50-75% slippage of the vertebral body (anterolisthesis).  The CI was treated with activity modification, pain medications, and physical therapy.  The CI underwent a L5-S1 fusion on 4 August and partial discectomy on 2 September 2008.  The CI developed a bone infection and was treated for surgical incision and drainage and intravenous antibiotic therapy for 6 weeks.  He underwent a second L5-S1 fusion with lumbo-pelvic fixation on 14 October 2008.  The MEB Narrative Summary (NARSUM) examination, approximately 5 months prior to separation, documented reports of daily lower back pain which worsened with bending.  The pain flare lasted up to 45 minutes.  The CI rated the pain at 6/10 at rest and increased to 9/10 with aggravating factors.  The physical examination was significant for slightly limited thoracolumbar range-of-motion, minimal pain with flexion, significant pain with extension, tenderness at the lumbosacral junction; an antalgic gait; palpable iliac bolts on both posterior crests causing skin irritation, and positive radicular pain maneuvers.  The examiner noted that an electromyogram done in July 2009 demonstrated a right L5 radiculopathy.  At the VA Compensation and Pension (C&P) examination, approximately 3 months after separation, the CI reported stiffness, fatigue, spasms, decreased motion and numbness to both legs; right greater than left, and that it took him 10 minutes to walk 100 yards.  The pain radiated down both legs and was exacerbated by physical activity and weather changes.  A lumbar spine X-ray performed at this examination showed normal post-operative changes, no new abnormalities.  T
here were goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	PT/MEB ~4/5 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Flexion (90 Normal)	90 (110,110,107)	30(30,30,30)	
Extension (30)	30 (34,33,34)	10,10,10	
Combined (240)	240	80	
Comment	goniometer used	radiating pain on walking/standing; muscle spasm; muscle spasm produced abnormal gait; tenderness to palpation; SLR+ on left/right	
§4.71a Rating	20% (10% PEB)	40%	
§4.124 Rating	10% (MEB)	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the spinal fusion, S/P two fusions condition at 10%.  The VA rated the condition at 40%.  Both the PEB and VA coded the condition 5239-5241 (Spondylolisthesis or segmental instability-Spinal fusion).  The Board considered whether the evidence supported a higher than 10% rating.  The Board noted that multiple treatment notes documented post-surgical chronic lower back pain with a right radiculopathy.  The NARSUM examiner documented an antalgic and significant pain with moving from a forward bending position.  The VA examiner also documented an abnormal gait with paraspinous muscle spasm.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed criteria was met for a 20% rating for muscle spasm or guarding severe enough to result in an abnormal.  

The Board then directed attention to its rating recommendation for the unfitting radiculopathy condition based on the above evidence.  The PEB and VA rated the radiculopathy, right L5 condition at 10%, coded 8799-8720 (Sciatic nerve-Neuralgia) and 8520 (Sciatic nerve - Paralysis of) respectively.  The Board considered whether the evidence supported a higher than 10% rating.  There was evidence of mild sensory deficits; however service treatment records and VA records documented normal right lower extremity muscle strength. The primary impairment resulting from the radiculopathy was the intermittent pain.  Board members agreed that the evidence did not meet criteria for a moderate incomplete paralysis of the sciatic nerve. 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 right lower extremity radiculopathy.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were mild chronic neck pain; normal C-spine series; history of neutropenia, leukopenia, and anemia; history of osteomyelitis after lumbar spine; and wound infection in the back.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  None of these conditions were profiled; and, none were judged to fail retention standards.  All were reviewed and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mild chronic neck pain, normal C-spine series, history of neutropenia, leukopenia, and anemia, history of osteomyelitis after lumbar spine and wound infection in the back contended conditions; and, therefore, no additional disability ratings can be recommended.  Nicotine dependence does not constitute a physical disability and is not compensable or ratable and was appropriately indicated as not unfitting. 

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 spinal fusion, s/p two fusions condition, the Board unanimously recommends a disability rating of 20%, coded 5239-5241 IAW VASRD §4.71a.  In the matter of the radiculopathy, right L5 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild chronic neck pain, normal C-spine series, history of neutropenia, leukopenia, and anemia, history of osteomyelitis after lumbar spine and wound infection in the back conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Spinal Fusion, S/P Two Fusions	5239-5241	20%	
Radiculopathy, Right L5	8799-8720	10%	
COMBINED	30%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXX, AR20160004996 (PD201402504)

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 30% 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
30% 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