RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03483
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080627

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

CI CONTENTION:  His condition continues to worsen and negatively impacts his daily activities.  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 on 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 - 20080327	VARD - 20080916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Fusion, with Persistent Pain after Surgery and Post-operative Infection	5241	20%	Status Post Fusion of L5-S1	5241	20%	20080506	
			Residual, Surgical Scar, Lower Back 	7805	0%		
			Radiculopathy, Left Lower Extremity 	8620	0%		
			Radiculopathy, Right Lower Extremity	8620	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL CONDITIONS:  50%	

ANALYSIS SUMMARY:

L5-S1 Fusion.  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in 2005 after a ruck march during basic training.  Magnetic resonance imaging showed disk degeneration at L5-S1, with disk extrusion.  Provocative diskogram isolated the pain to L5-S1.  On 26 June 2005, the CI underwent spinal fusion surgery at L5-S1.  A few weeks later, he was noted to have a superficial post-operative wound infection, and he underwent irrigation and debridement.  After he recovered from the infection, he was treated with medication, physical therapy, and activity modification.  Despite treatment, the back condition could not be adequately rehabilitated.  The MEB forwarded “lumbar degenerative disk disease” and “chronic pain, status post post-operative infection” for PEB adjudication.

At the MEB NARSUM examination on 11 January 2008 (6 months prior to separation), the CI complained of low back pain that radiated down both legs.  Pain was worse with running, jumping, prolonged standing, sit-ups, push-ups, or heavy lifting.  Physical examination showed he arose stiffly from a chair and had an antalgic gait.  There was tenderness to palpation and muscle spasm in the paraspinal muscles.  Neurological exam was normal.  The range of motion (ROM) testing, referenced to by the MEB NARSUM, was performed by physical therapy on 19 March 2008, 3 before separation.  He reported daily pain which began in the morning.  The thoracolumbar active ROM was flexion 65 degrees (normal 90) and total combined ROM 160 degrees (240 normal) with painful motion.

At the VA Compensation and Pension (C&P) examination on 6 May 2008, 2 months before separation, the CI reported pain and stiffness with spinal motion.  Posture and gait were normal with positive spinal tenderness, guarding, muscle spasm and straight leg raising testing.  Deep tendon reflexes were 2+ at the knees and ankles.  The ROM was flexion 45 degrees and total combined ROM 175 degrees with painful motion.  There was no additional loss of motion with repetitive use, and X-rays revealed no evidence of an acute process.  

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating, coded 5241 (spinal fusion), citing abnormal gait due to guarding.  The VA also assigned a 20% rating with code 5241, based on the C&P examination 2 months before separation, citing limitation of flexion.  The Board agreed that there was evidence of abnormal gait due to guarding as documented by the MEB NARSUM examination.  The Board also determined that a 20% rating was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the C&P examination which was 2 months before separation.  There was no evidence of intervertebral disc syndrome (IVDS) resulting in incapacitating episodes requiring physician-prescribed bedrest, to warrant consideration of rating under the alternate VASRD formula (for IVDS).

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported pain down his legs and tested positive for straight leg raises.  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 pain from a nerve involvement, the symptomatic pain 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 or sensory deficit would impact military duties.  There was no evidence in this case that motor weakness or sensory deficit existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the L5-S1 fusion condition.

BOARD FINDINGS:  In the matter of the L5-S1 fusion 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 20140926, 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 XXXXXXXXXXXXXXXXXX, AR20160011352 (PD201403483)

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