RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00286
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040324

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 “chronic back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that the rating for his back does not reflect the level of his disability he is having.  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 - 20040130	VARD -20040602	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5239	10%	Degenerative Joint Disease	5239	20%	20040304	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), there was a history of back pain that became worse in September 2003 when the CI fell off the back of a pick-up truck.  Radiologic studies initially showed a mild L5-S1 spondylolisthesis.  Later radiographic studies showed grade I spondylolisthesis of the L5-S1 vertebral level, degenerative disc disease, and a bilateral fracture (pars defect) of the L5 level.  Evaluation by the neurosurgeon determined the CI had a potentially unstable L5-S1 spondylolisthesis.  The surgeon recommended restrictions that included no lifting, crawling, bending, or stooping.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.   The MEB forwarded “L5 bilateral pars fracture, with degenerative disc at L5-S1 and a grade I L5-S1,” for PEB adjudication.  

The MEB NARSUM examination on 21 November 2003 (4 months prior to separation) noted increased periodic back pain, radiating to the legs (right greater than left), resulting in inability to wear combat gear, engage in PT, and ride a horse.  Physical examination showed a lumbar flexion of 25 degrees (normal 90) and a total combined range of motion (ROM) of 135 degrees (normal 240).  There was no evidence of motor, sensory or reflex changes in the lower extremities.  At a physical therapy visit in January 2004 (2 months prior to separation), the physical examination showed a flexion of 75 degrees after repetition with tenderness of the paravertebral muscles.  

At the 4 March 2004 VA Compensation and Pension (C&P) evaluation (3 weeks prior to separation), the CI reported tightness, stiffness, and dull ache with periodic radiation to the right upper thigh and use of a cane.  Pain was rated at 6/10 with flares resulting from bending and straining activities.  Physical examination produced muscle spasm.  Flexion was to 40 degrees with no evidence of nerve tension, neurologic deficits, nor intervertebral disc syndrome.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the “chronic back pain,” coded 5239 (spondylolisthesis or segmental instability), citing forward flexion of 85 degrees.  The VA rated 20% for “degenerative joint disease, L5-S1,” coded 5239, based on the VA C&P examination at separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The Board noted the disparity between the NARSUM, PT and VA examinations and carefully reviewed the evidence proximate to separation to determine the probative value of each examination.  The PT examination recorded ROMs with repetition, while the NARSUM and VA examinations did not indicate repetitive measurements.  The Board discussed whether the November 2003 NARSUM examination that recorded a flexion of 25 degrees without spasm, or the March 2004 VA examination, which recorded normal gait, muscle spasm and a ROM of 40 degrees, was more indicative of his baseline disability and supported the next higher rating (considering §4.40 [functional loss], §4.45 [the joints], and §4.3 [reasonable doubt]).  

The NARSUM examiner specified lumbar ROM and not the thoracolumbar spine specified by the VASRD (§4.71a, Plate V).  The lumbar ROM was reported as 25 degrees of flexion (normal 60 for isolated lumbar flexion).  When combined with a normal thoracic ROM, this would represent approximately 55 degrees of thoracolumbar flexion correlating with a 20% rating using the current VASRD general rating formula for diseases and injuries of the spine.  

The Board members agreed that the NARSUM and VA examinations corroborated similar findings and were a better reflection of the ROM at the time of separation.  Therefore the Board placed greater probative value on those examinations.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  There was no documentation of incapacitating episodes which would provide for a higher rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  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).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that 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 back condition, coded 5239.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5239 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	RATING	
Chronic Back Pain	5239	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150423, 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

03 March 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160019824 (PD201500286)

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