RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01772
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20040514

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic low back pain with left lower extremity radiculitis”with a disability rating of 10%.  

CI CONTENTION:  “Broke back while serving and it did not heal good enough for active service.  Continuous lower back pain.  Knee problems, (will be having partial knee replacement) L knee.”  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 – 20040408 	VARD - 20050104	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain with Left Lower Extremity Radiculitis…	5239-5237	10%	Lumbar Spondylolisthesis with Degenerative Disease and Left Lower Extremity Radiculitis, …	5239	20%	20040821	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain With Left Lower Extremity Radiculitis.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in October 2002 when he complained of sharp low back pain that started while attempting to lift his child.  Magnetic resonance imaging (MRI) in July 2004 showed severe degenerative changes at L4-L5 with a centrally herniated disk slightly off to the left.  He also had a grade I spondylolisthesis of L5 on S1 with a herniated disk on the left side causing significant compression of the left S1 nerve root.  He also had spondylolysis.  In May 2003 he underwent L4 through S1 decompressive laminectomy and posterior lumbar interbody fusion at L4 to S1, L4-L5 and L5-S1 with screw fixation of L4 through S1.  

The 15 December 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of mild low back pain with radiation to the left lower extremity, which was worse with prolonged standing.  Physical examination showed tenderness, a slightly antalgic gait with good heel, toe and tandem walk, and no spasm.  There was a well-healed midline scar in the lumbar area.  Thoracolumbar range of motion (ROM) measurements showed flexion of 70 degrees (normal 90) and combined ROM of 120 degrees (normal 240).

At the 21 August 2004 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported he continued to have low back symptoms and occasional shooting pain down the left lower extremity.  Physical examination showed a non-antalgic gait.  Thoracolumbar ROM measurements showed flexion of 60 degrees (normal 90) extension 20 degrees (normal 30), right lateral flexion 30 degrees (normal 30), and left lateral flexion 30 degrees (normal 30), with rotations not measured.  Diagnostic imaging showed posterior spinal instrumentation at the levels of L4-L-5 and L5-S1, enhancing scar formation on the posterior disc margin, and L3-L4 degenerative disc and small central disc protrusion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5239-5237 (spondylolisthesis or segmental instability - lumbar spine strain), citing ROM restricted, flexion 70 degrees, combined range of motion 164 degrees.  The VA rated the lumbar spondylolisthesis condition 20%, coded 5239, based on the C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  The panel noted that the PEB did not apply the VASRD §4.71a spine rules notes 2 and 4 for rounding and truncation of measurements for the ROMs cited by the PEB.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and/or combined ROM not greater than 120 degrees, as reported on the NARSUM and VA examinations.  Criteria for rating diseases and injuries of the spine apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the low back condition, coded 5239-5237.  

BOARD FINDINGS:  In the matter of the low back condition, the panel unanimously recommends a disability rating of 20%, coded 5239-5237 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel 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	
Chronic Low Back Pain with Left Lower Extremity Radiculitis…	5239-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180000021, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure