RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01336
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Counterintelligence Agent, medically separated for “mechanical low back pain with grade one L5/S1 spondylolisthesis,” with a disability rating of 10%.

CI CONTENTION:  The CI contends his unfitting back condition.  His 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 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 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 - 20031006	VARD - 20040915	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical LBP	5241-5299-5237	10%	Spondylolisthesis L4, postoperative L4-5 and L5-S1 Fusion	5239	20%	20040416	
			Radiculopathy, Right LE	8599-8520	10%		
			Radiculopathy, Left LE	8599-8520	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Mechanical LBP [Low Back Pain].  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI first noted LBP while doing sit-ups in April 2001.  Magnetic resonance imaging on 20 April 2001 showed a congenital slippage of L5 over S1 was well as narrowing of the vertebral foramina (bony windows from which the nerve roots exit).  Degenerative disc disease was noted at L4-5 and L5-S1 as well.  He was treated with light duty, physical therapy (PT) and medications, but his pain persisted.  He then underwent back surgery (L4-S1 posterior spinal fusion with instrumentation) on 10 May 2002.  Following surgery, he initially did well and had a normal neurological examination on a follow-up visit in neurosurgery on 3 July 2002.  In PT on 28 August 2002, he was noted to have essentially normal motor function and range of motion (ROM) with limitations in extension and rotation only.  In February 2003, the CI reported right sided LBP which radiated into his right leg.  An MRI on 27 February 2003 showed the expected post-operative changes and some compression of the sac surrounding the spinal cord without recording compression of the cord itself.  Nerve root impingement was not documented and the overall impression was of improvement from the examination prior to surgery.  At a pain clinic appointment on 1 April 2003, the CI complained of constant sharp pain with activity, prolonged sitting and bending forward.  Physical examination revealed an antalgic gait with decreased sensation to the right leg in an L5 distribution and weakness of the hallux flexor (S1; great toe).  In PT the next day, the CI had weakness of the right leg from the right hip to the right great toe.  Flexion and side bending of the lumbar back were normal and extension reduced to 10 degrees.  The CI was diagnosed with a failed back and referred for an MEB.  

The MEB NARSUM examination on 21 April 2003 (10 months prior to separation) noted continued pain that was worse with sitting, standing and walking.  The physical examination showed decreased ROM (without quantification) and paralumbar tenderness.  The neurological examination was normal with normal motor and sensation examination, normal reflexes, and a normal gait.  The MEB forwarded mechanical LBP, grade 1 L5-S1 spondylolisthesis and status post L4-S1 instrumented fusion for PEB adjudication.  In PT on 22 May 2003, the ROM was reduced in some planes and painful in all as charted below.  The MEB 2808 examination documented tenderness to palpation over the spine, but a normal neurological evaluation.  At the time of a ROM measurement physical therapy clinic appointment on 2 October 2003, the CI reported constant back pain.  On examination the CI showed pain with movement in all directions.  The ROM measurements were for the lumbosacral spine, rather than the thoracolumbar spine, and are therefore not probative for rating purposes.  

At the 16 April 2004 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported debilitating pain and incapacitation; however, this was not separately documented in the records.  He also reported pain radiating to the left leg (previously, it had been to the right).  He was able to accomplish the activities of daily living but had trouble pushing a lawn mower and gardening.  The physical examination showed a normal gait and posture.  There was no muscle spasm, tenderness, or guarding.  The reflex and motor examinations were normal.  The examiner identified decreased sensation in both the left and right lower extremities in the L4 and L4/5 distribution, respectively.  Motion was limited by pain and is charted below.  The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	PT ~11 Mos. Pre-Sep	PT ~9 Mos. Pre-Sep	VA ~2 Mos. Post-Sep	
Flexion (90 Normal)	“WNL”	75% (68 degrees; Fingers 10.5 inches to floor)	45	
Extension (30)	~10	25% (8 degrees; less than 5)	30 (35)	
Combined (240)	--	~195	190	
Comments	Lumbosacral motion	12 months post-op		
§4.71a Rating	Not valid	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the mechanical LBP condition 10%, coded 5241-5299-5237 (spinal fusion, analogous to lumbosacral strain), citing marked decreased ROM accompanied by pain.  The VA rated the low back condition 20%, coded 5239 (spondylolisthesis or segmental instability), based on the VA C&P examination 2 months after separation, citing limitation of forward flexion to 45 degrees.  Additionally, the VA rated right and left lower extremity radiculopathy rated 10% coded 8599-8520 (analogous to incomplete paralysis of the sciatic nerve.  The Board agreed a 20% rating was supported by the VA C&P examination.  It is the most proximate to separation, used a goniometer, and also was for the thoracolumbar spine.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported some leg numbing and the VA C&P identified bilateral lower extremity sensory deficits.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The examination was typically normal and when a deficit was recorded, it was not consistent between examinations.  The Board therefore concluded that an 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 recommended a disability rating of 20% for the low back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5241 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	PERMANENT RATING	
Mechanical LBP	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150608, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX, AR20170001277 (PD201501336)

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