RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00292
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E5, Wheeled Vehicle Mechanic, medically separated for “chronic back pain due to Bertolotti’s syndrome” with a disability rating of 10%.

CI CONTENTION:  The CI contends that his back condition has worsened and should be reconsidered.  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 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 - 20060511	VARD - 20061222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain ... Bertolotti’s Syndrome	5299-2037	10%	Bertolotti Syndrome	5299-5236	0%	20061101	
			Sciatica	8520	NSC	20061101	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR), the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s developed back pain in February 2005 during physical training.  The pain persisted and there was occasional lower extremity radiation, but without motor or sensory symptoms.  Imaging (MRI) demonstrated mild disc disease (L4/5 with no nerve root encroachment) that was not detected on follow-up studies; and, revealed congenital anomalies (“lumbarization of the S1 vertebral body with partial right-sided lateral fusion”) consistent with Bertolotti’s syndrome.  There were multiple outpatient STR entries documenting normal neurological examinations (5/5 strength, intact sensory, normal reflexes), and normal gait and spinal contour, with none to the contrary.  There were entries documenting grossly normal range of motion (ROM), with one entry commenting on non-specifically decreased left rotation, but no entries indicating any significant limitation.  There was no documentation in the STR or commander’s statement of incapacitating episodes corroborating a history of multiple placements on quarters related later to the VA examiner.  Orthopedics opined that surgery was not indicated, and a continued trial conservative measures (including epidural injections) did not result in sufficient improvement to allow unrestricted duty.  The MEB forwarded “Bertolotti’s Syndrome” to the PEB.  

The NARSUM (orthopedic) examination on 4 April 2006 (10 weeks before separation) documented “low back pain with occasional leg pain” without elaboration of pain severity or functional limitations.  The physical examination recorded normal neurological findings without comment regarding other findings.  The MEB’s physical examination (19 April) recorded tenderness, the absence of spasm, and normal neurological findings.  With regard to ROM, the examiner documented flexion to 75 degrees (normal 90), extension to 10 degrees (normal 30), and “full” bilateral side flexion and rotation.   Formal ROM measurements by physical therapy 5 days later were flexion to 85 degrees and combined ROM of 235 degrees (normal 240).

A VA Compensation and Pension (C&P) examination on 1 November 2006 (4 months after separation) documented back pain rated 4/10 with intermittent radiation to the right leg (motor and sensory symptoms denied); and, detailed no interference with daily activities without elaborating any additional functional limitations.  The physical examination recorded normal gait and spinal contour, the absence of spasm, and normal neurological findings (motor, sensory, reflexes).  The measured ROM was flexion to 85 degrees with a combined ROM of 235 degrees, specifying painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated 10% under code 5299-5237 (analogous to lumbar strain), citing the VASRD §4.71a criterion of tenderness.  The VA (based on the C&P evidence) rated 10% under code 5299-5236 (analogous to sacroiliac injury and weakness), citing painful motion.  The VA did not service-connect a claim of sciatica, stating that it had not “been clinically diagnosed on examination.”  There was no ROM evidence supporting a rating higher than 10%, and no evidence for abnormal gait or contour to support a 20% rating.  There was neither sufficient documentation of physician-directed bed rest nor a supported diagnosis of intervertebral disc syndrome to support a higher rating under the alternate §4.71a rating formula based on incapacitating episodes.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the radicular symptoms; but, members agreed that neither the functional link to fitness requisite for rating, nor the presence of a VASRD ratable deficit, were supported by the evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.  

BOARD FINDINGS:  In the matter of the lumbar spine 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 20150319, 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

07 Feb 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160019827 (PD201500292)

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