RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03614
BRANCH OF SERVICE:  Army	BOARD DATE:  20150527
SEPARATION DATE:  20090713

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Heavy Machinery Operator) medically separated for spondylolisthesis.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Spondylolisthesis with degenerative disc disease lumbar,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded four medically acceptable conditions (major depression, right knee pain, dyspepsia and hyperlipidemia) for PEB adjudication.  The Informal PEB adjudicated “spondylolisthesis” as unfitting, rated 20% citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were found to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 20090713	VA* – (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis	5239	20%	Lumbar Spondylolisthesis	5237	20%	20091117	
Major Depression	Not Unfitting	Depression	9400	NSC	20091014	
Knee Pain	Not Unfitting	Patellar Syndrome, Right Knee	5299-5260	10%	20091117	
Dyspepsia	Not Unfitting	Dyspepsia	7399-7346	NSC	20091117	
Elevated Cholesterol	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING: 20%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20091124 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Spondylolisthesis.  Around January 2008, while deployed overseas, the CI started having low back pain (LBP).  After his return to home station, computerized tomography (CT) of the lumbar spine was performed.  It showed spondylolisthesis and degenerative disc disease (DDD), with bilateral foraminal narrowing.  In December 2008, magnetic resonance imaging revealed spondylolisthesis and DDD, with no nerve root impingement or significant spinal stenosis.  The CI’s back pain was treated with conservative measures.  In spite of all treatment efforts, the LBP persisted and an MEB was initiated.  The MEB orthopedic physical examination (PE) was in February 2009.  The CI was able to get up out of his chair unassisted, without difficulty.  Posture was normal and lumbar spinal curvature was normal.  His gait was antalgic, with limping.  Range-of-motion (ROM) was measured and is summarized in the chart below.  The neurologic exam of the legs was normal.  The MEB narrative summary diagnosis was “spondylolisthesis, with DDD, lumbar.”

Four months after separation, on 17 November 2009, the CI had a VA Compensation and Pension (C&P) exam.  He was attending college full-time, and was studying to become a software developer.  He reported intermittent LBP which worsened with walking, bending, or prolonged standing.  He walked with a limp, favoring his left leg.  On PE of the lower back, his posture was normal, and his pelvis was level.  There was moderate tenderness over the mid and lower lumbar spine.  No spasm was noted.  Toe walking and heel walking was normal.  Straight leg raise was negative bilaterally.  Muscle strength in both legs was normal.  ROM was measured, and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~5 Mos. Pre-Sep
	VA C&P ~4 Mos. Post-Sep
	
Flexion (90 Normal)	70	55	
Combined (240)	165	135	
Comment	painful motion, guarding, and abnormal gait	painful motion, and abnormal gait	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The Army PEB and the VA chose different coding options for the LBP condition, but both assigned a 20% disability rating.  The February 2009 MEB exam was 5 months prior to the DOS.  At that exam, there was guarding and abnormal gait.  IAW VASRD §4.71a, a 20% rating is warranted when there is guarding severe enough to result in an abnormal gait.  The November 2009 C&P exam was 4 months after DOS.  At that exam, thoracolumbar forward flexion was greater than 30 degrees but not greater than 60 degrees.  IAW VASRD §4.71a, a 20% rating is warranted when forward flexion is greater than 30 degrees but not greater than 60 degrees.  Therefore, based on data from both spine examinations described above, the Board determined that a rating of 20% was appropriate for the LBP condition.  There was no path to a higher rating, because there was insufficient evidence of a seriously disabling back impairment or spinal abnormality that would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at DOS.  After due deliberation, 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 spondylolisthesis, with DDD.

Other PEB Conditions.  Four conditions (major depression, dyspepsia, right knee pain, and hyperlipidemia) were adjudicated by the PEB as not unfitting and therefore not ratable.  The Board’s main charge with respect to these conditions is to assess the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  These four conditions were thoroughly reviewed and considered by the Board.

The Board determined that none of these conditions were specifically profiled, nor were they judged to fail retention standards.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the major depression, dyspepsia, right knee pain, and hyperlipidemia.  Therefore, no additional disability rating is recommended.

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 spondylolisthesis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the major depression, dyspepsia, right knee pain, and hyperlipidemia, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140709, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY
251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

SAMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

06 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160003332 (PD201403614)

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