RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03979
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080402

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-4, Machinist, medically separated by the US Army Physical Disability Agency (PDA) for “spinal fusion of L5-S1 with revision and micro-discectomy of L4-L5” with a disability rating of 20%.

CI CONTENTION:   “Please consider all conditions.”  The applicant’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 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 - 20080503	VARD - 20080730	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion of L5-S1…	5241	20%	Lumbosacral DDD…	5243-5242	40%	20080320	
			Lower Left Extremity (LLE) Neuropathy	8621	10%	20080320	
Mild Lumbar Scoliosis	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

LBP (Spinal Fusion of L5-S1 with Revision and Micro-discectomy).  The CI was first seen for LBP on 26 December 2005 with the sudden onset of pain after picking something up.  He denied other trauma with the exception of a remote car accident.  He was again seen on 23 January 2006 and reported that he had pulled a muscle in his back for the second time, the first being the previous October.  An X-ray on 23 February 2006 demonstrated a mild abnormal curvature to the right (scoliosis).  His pain continued despite medications and duty limitations.  Magnetic resonance imaging (MRI) showed a herniated disc at L5-S1 on the right.  He was then referred to neurosurgery and underwent surgery on 27 November 2006.  He initially did well, but then had recurrent pain.  A repeat MRI showed an extruded graft which was revised on 9 April 2007.  Despite the second surgery and continued rehabilitation, his pain persisted and prevented return to full duty.  The MEB narrative summary (NARSUM) was dated 18 September 2007 by orthopedics.  He reported that he had been injured in August 2005 when a HUMVEE fell off the jacks (it was 2 feet above the ground) during a repair and he was struck by a door frame.  This history is not consistent with prior service treatment records.  He reported that he could only walk for 5-7 minutes before stopping from pain and could only stand for 10 minutes before he needed to sit or lie down.  He also reported that he could only sit for 5 minutes.  On examination, he had an antalgic gait (abnormal secondary to pain avoidance).  The range-of-motion (ROM) was limited by pain.  The sensory and motor examinations were normal and the reflexes reduced at the left ankle.  He could walk on both his heels and toes.  Tenderness and spasm were present.  One maneuver (Waddell’s sign) not expected to cause pain in this condition was positive.  A neurosurgery note on 10 October 2007 documented that the CI was recovering slowly, but well.  His gait was normal.  When seen on 2 November 2007, he had been helping a roommate walk and bending over had not helped (his pain).  The CI was uncomfortable and stood rather than sat.  The Board noted the inconsistency between the NARSUM history and these two examinations.

At the VA Compensation and Pension (C&P) general examination performed on 20 March 2008, 1 month before separation, the CI reported that a HUMVEE had slid off of a lift and landed on his right shoulder and knocked him off of his feet.  On examination, he was slightly bent forward and had difficulty standing from a sitting position.  The ROM was reduced as charted below.  He had normal reflexes and reduced sensation in the left distal (toes) foot.  The motor examination was not recorded.  A mental health C&P examination on 27 January 2009, 10 months after separation, recorded that the CI had worked construction since June 2008, 2 months after separation, painting and installing flooring, insulation, and drywall.  In addition, he had “gutted” a house which had flooded.  He had helped his brother open a new nightclub by tearing out a wall and painting it.  At home, he brought in the wood for the fire and took care of the snow (Board consensus finds this implies he cleaned the driveway and sidewalks).  Two weeks later in a general C&P examination on 12 February 2009, 11 months after separation, he reported that walking on smooth ground for 10 minutes or rough ground for 2 minutes precipitated his pain as did sitting for more than 5 minutes in one position.  He denied sensory or motor loss.  On examination, his gait and posture were normal and he had no trouble with (position) transfers or changing his position in bed.  There was some loss of the normal curvature of the lumbar spine.  The ROM was reduced and is charted below.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the CI at 20% for the back pain condition, coded 5241 (spinal fusion), citing the limitation in motion of 40 degrees.  The VA rated the CI at 40% for the back, coded 5242-5243 (degenerative arthritis of the spine and intervertebral disc syndrome).  The VA also adjudicated a 10% rating for a LLE neuropathy, coded 8621 (neuritis of the common peroneal nerve).  The Board considered the evidence.  The PEB examination supports a 20% rating whereas both VA ROM measurements support a 40% disability rating.  The Board then considered the probative value of the VA examinations.  It noted that both showed a forward flexion of 30 degrees and that the CI reported significant limitations in activity.  However, other documentation shows that the CI worked in construction including installing flooring, gutting buildings, and painting.  In addition, he brought in firewood and tended “to the snow.”  On the second VA general examination, he had a normal posture and gait and transferred position without difficulty.  This level of activity is not consistent with the reported limitations or the limitation in the ROM.  The Board also noted that the sensory deficit was inconsistently present.  The Board majority did not find evidence to support the addition of an unfitting radiculopathy at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that mild lumbar scoliosis was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The scoliosis was not specifically profiled or implicated in the commander’s statement.  It was found to meet retention standards.  It was reviewed and considered by the Board.  There was no performance-based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation, and 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 contended scoliosis condition and so no additional disability rating is recommended.  The Board noted that even if it were unfitting, any disability would be subsumed under the overall impairment from the back and a single back rating assigned.

BOARD FINDINGS:  In the matter of the spinal fusion of L5-S1 with revision and microdiskectomy of L4-5 condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended lumbar scoliosis conditions, 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.  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 20140723, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION: Based on VASRD §4.3 (reasonable doubt), the minority finds the CI’s spinal fusion of L5-S1 and microdiscetomy of L4-L5 at the time of separation supports a 40% rating versus the majority vote 20% recommendation.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at their majority and minority rating recommendations, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~7 Mos. Pre-Sep
(20070918)	VA C&P ~1 Mo. Pre-Sep
(20080320)	VA C&P ~11 Mo. Post-Sep
(20090212)	
Flexion (90 Normal)	40	“At about 30”
(Excruciating pain)	30	
Combined (240)	155	130	110	
Comment	Pain limiting motion	Pain limiting motion	Pain limiting motion	
§4.71a Rating	20%	40%	40%	

The Board majority placed the highest probative value on the MEB NARSUM exam performed 7 months before separation which rendered a 20% ROM rating.  The VA exam findings of flexion limited to “about 30 degrees” at 1 month pre-separation clearly supported a 40% rating.  The C&P exam findings at 11 months post-separation again demonstrated significant limited flexion at 30 degrees.  The majority cited the CI’s ability to perform construction work, bring in firewood, and tend “to the snow” as inconsistent with the measured limitation in motion and that this lowered the probative value of the two VA general C&P exams; all charted above.

It is the minority voter’s position that it is speculation to determine at what capacity and completeness did the CI conduct these physical activities.  The VA recorded these physical activities while processing the CI’s request for unemployability.  Despite the CI’s ability to perform these activities, the VA continued the 40% lower back rating based on the 30 degree flexion VA findings that are objective-VASRD general spine rules criterion.  The decision by the VA rater has no bearing on our interpretation of the facts.

It is also the minority voter’s position that the CI’s physical activities are not VASRD general spine rules criterion and are too subjective to override the objective §4.46 (accurate measurement) compliant VA ROM findings.  Neither VA C&P general examiner documented Waddell’s sign, malingering; or over-exaggerating ROM evidence; such as the CI could easily bend down to tie his shoe laces, to lower the probative value of the VA’s ROM findings.

Based on VASRD §4.3 (reasonable doubt), and the corroborating VA C&P exams which document a 30-degree flexion, the first exam 1 month prior to separation, the minority voter finds a 40% disability rating is supported at the time of separation.

RECOMMENDATION:  The Board minority, therefore, 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:

CONDITION	VASRD CODE	RATING	
Spinal Fusion of L5-S1…	5241	40%	
RATING	40%	

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160005150 (PD201403979)

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