RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00168
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040530

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Light Wheeled Vehicle Mechanic, medically separated for “chronic low back pain, due to L5-S1 spondylolisthesis, without neurologic abnormality …,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends his condition continues to worsen.   The 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 Board 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 determination 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(s) 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 - 20040312	VARD - 20050412	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, due to L5-S1 Spondylolisthesis	5239	10%	Degenerative Changes L3-4 and L4-5, with Spondylolistheses L5-S1	5239	10%	20050224	
			Right Lower Extremity Radiculopathy	8599-8520	10%	20050224	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a 3 to 4 year history of low back pain before presenting for treatment in June 2000.  Surgery was not indicated.  Radiographic imagining (MRI) in August 2002 showed grade I spondylolisthesis of L5-S1.  Electrodiagnostic testing in September 2003 of the right lower extremity was normal without evidence of radiculopathy.  

During the 17 October 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported back pain radiating down his right leg.  Physical examination showed low back tenderness with decreased active range of motion (ROM) in flexion with diffuse paraspinal muscle spasms.  

The 18 December 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of low back pain and intermittent right lower extremity pain.  The CI denied any bowel or bladder incontinence.  Physical examination revealed “low back pain with paraspinal spasms is noted.  Decreased flexion is noted.”  Motor strength was normal (5/5) for all four extremities, and there were no focal neurologic deficits.  A 10 March 2004 physical therapy evaluation, 3 months before separation, revealed back ROM (using a bubble inclinometer) of flexion to 90 degrees (normal 90) and combined 240 degrees (normal 240); painful motion not addressed.  

At the 24 February 2005 VA Compensation and Pension (C&P) General evaluation, performed 9 months after separation, the CI reported back pain with intermittent-radiating pain down the right leg.  Physical examination showed no leg weakness.  ROM was flexion of 90 degrees (normal 90) and combined 220 degrees (normal 240).  The examiner stated that there was no weakness and ROM “was not limited by pain, fatigue weakness, or lack of endurance.  He does not have problems with instability or incoordination.  He is able to walk and perform all of his daily chores and activities.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5239 (spondylolisthesis), citing localized spinal tenderness.  The VA also rated the back condition 10%, coded 5239, based on the C&P examination 9 month after separation, citing painful motion.  The panel agreed that a 10% rating, but no higher, was justified for tenderness and spasm on the MEB examination, spasm on the NARSUM examination, or for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the C&P examination.  Although there was muscle spasm on the MEB and NARSUM examinations, it was not severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel also considered if additional disability rating was justified for peripheral nerve impairment due to the right lower extremity radiculopathy.  The STR and MEB indicated radicular pain and no noted radiculopathy by electrodiagnostic study or clinical findings, and the PEB summarized “without neurologic abnormality.”  The panel requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; and, there was no objective evidence of either motor weakness or sensory deficits.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the panel could not support a recommendation for Service rating on this basis. 
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160401, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014093, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,					      
						      					
Enclosure