RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00718
BRANCH OF SERVICE:  army 		SEPARATION DATE:  20091025

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty  E4, Cryptologic Linguist, medically separated for “lumbar spondylolisthesis” with a disability rating of 20%.   

CI CONTENTION:  “Review all conditions.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation. 

RATING COMPARISON:  

SERVICE PEB - 20090710	VARD – 20100303 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spondylolisthesis	5239	20%	Degenerative Disc Disease, Lumbosacral Spine 	5239	10%	20091006	
Chronic Bilateral Knee Pain	Not Unfitting	Left Knee Sprain	5257	NSC		
		Any Right Knee Disorder	5257			
Deviated Nasal Septum		Status Post Nasal Septal Reconstruction and Sinus Surgery	6502		20100831	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Lumbar Spondylolisthesis.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent osteopathic manipulation treatment (OMT) and received an injection of ketorolac, an NSAID, for pain in the lumbar region on 14 January 2008 and had an additional OMT on 23 January 2008.  X-rays of the lumbosacral spine in May 2008 showed bilateral L5 spondylolysis (a defect in the pars interarticularis of the vertebral arch) with grade 1 spondylolisthesis (forward sliding of the L5 vertebra over the S1 vertebra).  Follow-up X-ray studies on 24 November 2008 showed bilateral L5 spondylolysis with grade 2 spondylolisthesis, slightly increased as compared to prior X-rays.  X-rays of the lumbosacral spine showed stable bilateral L5-S1 spondylolysis with grade 2 spondylolisthesis.  Magnetic resonance imaging on 13 March 2009 showed mild degenerative disc disease at L4-L5 and L5-S1 and bilateral spondylolysis at L5 with grade 1 spondylolisthesis. 

At the time of the physical therapy (PT) clinic appointment on 27 March 2009, 7 months prior to separation, the CI reported his back was doing well and did not have pain on some days.  Physical examination showed range of motion (ROM) measurements of the lumbar spine with flexion of 70 degrees (normal 90), extension of 12 degrees (normal 30) with pain, and side bending of 25 degrees (normal 30) bilaterally.  On 8 April 2009, the CI reported worsening back pain and walking with a limp on the left.  On examination, his gait was normal and ROM measurements were within normal limits, but there was pain with flexion and extension was pain limited to 15 degrees.  X-rays of the thoracic spine were normal.  

The 15 April 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, showed pain with extension, arching of the lumbar spine, muscular tightness and tenderness.  The examiner noted full ROM with flexion, lateral bending and rotation.  During the 15 April 2009 MEB NARSUM examination, the CI complained of chronic low back pain with intermittent numbness over his left torso.  Physical examination showed normal strength in the lower extremities and straight leg raise testing was negative for radiculopathy.  There was no abnormal kyphosis, scoliosis or lordosis.  There was myospasm (sudden involuntary contraction of a muscle) bilaterally in the L4-S1 region, but abnormal gait was not reported.  ROM measurements showed flexion of 90 degrees and combined ROM of 200 degrees (normal 240).   

At the 7 July 2009 PT clinic ROM examination, 4 months prior to separation, the CI reported 5/10 low back pain.  ROM measurement using an inclinometer was forward flexion of 30 degrees (normal 90) with pain beginning at 10 degrees, extension of 10 degrees with pain starting at 10 degrees, and right and left lateral flexion of 20 degrees each.  Right and left rotation were measured using a goniometer and were 30 degrees each (normal).  A memorandum from his treating physician dated 7 July 2009 indicated the CI suffered from lower back pain related to grade II spondylolisthesis, was extremely compliant with medical treatment, and underwent massage treatments as well as swimming for core strengthening.  While his ROM had been largely retained, the CI had difficulty rising up from a chair or walking any significant distance without the use of a cane for a distinctly abnormal, antalgic gait.  Additionally, it was noted that the CI’s activities of daily living were greatly impacted.  

At the 6 October 2009 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported 8/10 low back pain.  Physical examination showed a normal posture, ability to heel and toe walk, no tenderness, normal strength and normal reflexes.  ROM measurements showed a flexion of 70 degrees and a combined ROM of 170 degrees.  There was no additional loss of ROM after repetitive motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5239 (spondylolisthesis), citing variable day-to-day ROM measurements between 45 and 60 degrees and altered gait due to spasms.  The VA rated the back condition 10%, coded 5239, citing limitation of forward flexion.  

The panel noted the non-goniometric limitation of flexion recorded at the PT ROM study met the threshold for a 40% rating, but that level of limitation was disparate with previous flexion measurements and subsequent VA flexion measurement.  Therefore, the PT examination results are of limited value for rating purposes since the preponderance of evidence in the STR showed reasonably normal motion of the lumbar spine, no spasm and normal gait.  More importantly, the VA examination, which was more proximate to separation, was more detailed and reflected repetitive motion measurements.  Therefore, the panel placed a greater probative value on the VA examination which supported a 10% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  Therefore, the panel concluded there was no evidence to support a rating higher than the 20% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Conditions:  Chronic Bilateral Knee Pain and Deviated Nasal Septum.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Neither of the conditions were profiled, explicitly implicated in the commander’s statement or judged to fail retention standards.  Furthermore, X-rays of the knees were negative, ROM was normal and there was no instability or evidence of a meniscal tear in either knee.  The CI reported he was born with a deviated nasal septum and had surgery three times for it.  However, there was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended.    

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended chronic bilateral knee pain and deviated nasal septum conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20170115, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180004789, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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