RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02969
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Armor Crewman, medically separated for “L5-S1 fusion with low back pain,” with a disability rating of 10%.

CI CONTENTION:  “I feel my medical discharge was rushed and poorly evaluated.”  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 based upon a 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 - 20071002	VARD - 20080321	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Fusion and Facetectomy with Low Back Pain	5241	10%	Low Back Pain s/p Fusion	5239-5241	20%	20070907	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

L5-S1 Fusion and Facetectomy with Low Back Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) with numbness in the right leg began in June 2004 while conducting a physical fitness test.  The CI underwent a lumbar fusion in September 2007.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbago, lumbar spondylosis with spondylolisthesis persistent after lumbar facetectomy and posterior lumbar transforaminal interbody fusion L5-S1” for PEB adjudication.

A physical therapy (PT) examination on 10 August 2007, 4 months before separation, revealed thoracolumbar range of motion (ROM) of flexion to 30 degrees (normal 90) and combined ROM of 120 degrees (normal 240) after repetition utilizing an inclinometer.  A follow-on PT examination on 14 August 2007 revealed ROM within functional limits without spinal tenderness.

At the MEB NARSUM examination performed on 18 September 2007, 3 months prior to separation, the CI endorsed daily LBP.  His physical examination revealed muscle spasms and tenderness of the low back.  There was no radicular pain and distal reflexes were normal.  Heal-toe walking was reported as “ok.”  The examiner referred to the 10 August 2007 PT ROM evaluation as stated above.

At the VA Compensation and Pension (C&P) examination performed in September 2007, 3 months before separation, the CI reported stiffness, weakness and daily pain in the low back.  The CI displayed a normal gait and spinal contour.  There was no evidence of spasms.  Distal strength and reflexes were normal and maneuvers for radicular signs were negative.  Thoracolumbar ROM measurements revealed flexion of 35 degrees and combined ROM of 160 degrees.  There were no additional limitations after repetitive movements.  Electro-diagnostic studies performed on 24 September 2007 were negative for radiculopathy.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain and muscles spasms.  The VA rated the back condition 20%, analogously coded 5239-5241 (spondylolisthesis-spinal fusion) based on the VA C&P examination 3 months before separation, citing limited flexion ROM.

The Board noted that the limitation of thoracolumbar motion recorded in the PT examination met the threshold for a 40% rating; however, the Board noted the PT examination provided ROM values using an inclinometer vice a goniometer which is required by VASRD rules.  Board members agreed that the VA examination, performed 1 month later relative to separation, was more clinically detailed and compliant with VASRD rating guidelines.  Therefore, the Board placed greater probative value on the VA examination.  The Board agreed that the follow-on PT examination on 14 August 2016, corroborated with the VA examination, supports a 20% spine disability rating at separation.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar spine condition, coded 5241.

BOARD FINDINGS:  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, 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, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
L5-S1 Fusion and Facetectomy with Low Back Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140517, 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 XXXXXXXXXX, AR20160011467 (PD201402969)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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