RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01310
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20090828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Security Forces Journeyman, medically separated for “spondylolisthesis L5-S1” and “S1 radiculopathy,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI made no specific contention.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel's scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the panel for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’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 panel 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 panel 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 - 20090618	VARD 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis L5-S1	5239	10%	No VA examination in evidence	
S1 Radiculopathy	8520	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  	

ANALYSIS SUMMARY:  

Spondylolisthesis L5-S1.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s “spondylolisthesis L5-S1” condition began in June 2008 after falling.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbago with left lower extremity radiculitis” for PEB adjudication.  At a spine clinic visit on 24 February 2009, 7 months prior to separation, the CI reported a 1 year history of intractable low back pain symptoms that had progressed to radiation down the left lower extremity to the level of his ankle and foot.  Physical examination revealed decreased lumbar range of motion of the lumbar spine (forward flexion, extension and rotation bilaterally) with reproduction of his pain.  Radicular testing was positive (straight leg raise, and positive Lasegue sign) for the left lower extremity.  

The MEB NARSUM examination on 1 April 2009, 4 months prior to separation, noted complaints of an ongoing dull ache in the low back.  Physical examination showed no significant findings.  The examiner noted a magnetic resonance imaging (MRI) which demonstrated anterolisthesis of L5-S1 which increased with forward flexion.  At the time of the Physical Therapy (PT) clinic appointment on 7 April 2009 for MEB range of motion (ROM) measurements, the examiner recorded a flexion of 25 degrees (normal 90), extension 10 degrees (normal 30), and right lateral flexion 10 degrees (normal 30), and left lateral flexion of 20 degrees (normal 30).  However, the examiner also recorded 4/5 positive Waddell signs, which demonstrated clear exaggeration and overreaction of the CI during ROM measurements.   

There was no VA Compensation & Pension (C&P) examination in evidence proximate to separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “spondylolisthesis L5-S1” condition 10%, coded 5239 (spondylolisthesis or segmental instability).  The Board majority agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the 7 April 2009 MEB Physical Therapy examination for ROM measurements.  There was no unfavorable ankylosis of the entire thoracolumbar spine to support a 50% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 40% for the “spondylolisthesis L5-S1” condition, coded 5239.  

S1 Radiculopathy.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s “S1 radiculopathy” condition began in June 2008 after falling.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbago with left lower extremity radiculitis” for PEB adjudication.  At a spine clinic visit on 24 February 2009, 7 months prior to separation , noted complaints of one-year history of intractable low back pain symptoms that had progressed to having radiculitis of the left lower extremity which radiated along the lateral aspect of his lower extremity to the level of his ankle and foot.  Physical examination revealed a decrease in ROM of the lumbar spine with forward flexion, extension and rotation bilaterally with reproduction of his pain.  He did have a positive straight leg raise, and positive Lasegue sign of the left lower extremity.  The MEB NARSUM examination on 1 April 2009, 4 months prior to separation, noted complaints of an ongoing dull ache in the low back.  Physical examination showed no significant findings.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “S1 radiculopathy” condition 10%, coded 8520 (paralysis of the sciatic nerve, mild incomplete).  The Board agreed that a 10% rating, was justified for mild incomplete paralysis of the sciatic nerve.  There was no evidence of further limitations that would support a 20% rating for moderate.  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 for the “S1 radiculopathy” condition.  

BOARD FINDINGS:  In the matter of the “spondylolisthesis L5-S1” condition, the Board majority recommends a disability rating of 40%, coded 5239 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the “S1 radiculopathy” 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 majority recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Spondylolisthesis L5-S1	5239	40%	
S1 Radiculopathy	8520	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150615, w/attachments
Exhibit B.  Service Treatment Record

MINORITY OPINION:  

My dissent with the majority vote was based on the totality of the evidence in the STR related to the spondylolisthesis L5-S1 condition.  It is the minority position that the PEB’s 10% spine and 10% radiculopathy ratings were appropriate and consistent with the evidence before the PEB.  The majority recommendation rests on one set of ROM measurements that were unacceptably compromised by well documented signs of unreliable findings and multiple probative value distractors as below; and, the minority member asserts that this evidence was insufficient to justify the considerably higher rating recommended by the majority.

For a 9-month stable period the STR documented normal or non-specifically decreased ROM and there was no indication of severe ROM limitation.  There was no documentation of spasm, consistent documentation of a normal gait, and no documentation of the fairly rigid guarding that would be expected to accompany the severe ROM limitation credited by the majority for rating.  The pathology was chronic and mild in nature (single-level grade I spondylolisthesis with 1 millimeter excursion on flexion); and, there was no documentation of any injury, exacerbation, or other complication that would provide a clinical explanation for the severe and isolated deterioration in ROM reflected in the Physical Therapy (PT) measurements cited in the NARSUM and invoked for the majority recommendation.  

The PT examiner recorded numerous indicators of unreliable examination findings (Waddell’s signs).  These included tenderness elicited by light touch, pain response to simulated rotation, elimination of pain response by distracted maneuvers, non-physiologic display of weakness, and overreaction (exaggerated and inconsistent pain response).  Neither the PT nor NARSUM examiners noted spasm or guarding.  The same was true of all examiners during this same period, including the MEB’s physical examination and the MEB neurology consultant.  With such severe ROM limitations, there was no evidence of treatment 4 months before separation, and no evidence of treatment after separation.  
 
The severe ROM limitation displayed at the PT examination (flexion limited to 25 degrees, prohibiting numerous daily activities) was in sharp contrast with all other evidence, lacked plausibility, and suffered from all of the probative value mitigation elaborated above.  The Board’s recommendation should be premised on the totality of evidence; and, the minority member asserts that, even with generous concession to reasonable doubt, the incongruent PT ROM evidence did not carry the probative weight to sustain the majority recommendation.  There was no corroborating evidence and ample contrary evidence.  The totality of the evidence provides ample support for a conclusion that the PEB’s adjudication of the unfitting spondylolisthesis L5-S1 condition was reasonable and fair.   

The Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the PEB’s disability determination. 

SAF/MRB

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-01310.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings 

cc: SAF/MRBR