RECORD OF PROCeediNGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXX	CASE:  PD-2017-01013
BRANCH OF SERVICE:  army	SEPARATION DATE:  20080827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Imagery Analyst, medically separated for “L4-5 and L5-S1 fusion” with a disability rating of 10%.  

CI CONTENTION:  In addition to the back condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20080521	VARD - 20081023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 and L5-S1 Fusion 	5241	10%	Lumbar Spine Degenerative Changes 	5241	10%	20080717	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:

L4-5 and L5-S1 Fusion.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent two spinal surgeries: L4-5 fusion 11 June 2007 and L5-S1 fusion in October 2007, in a staged manner.  The back pain did not subside.  The 11 February 2008 MEB physical therapy (PT) MEB range of motion (ROM) examination, 7 months prior to separation (4 months following surgery), showed inclinometer-measured thoracolumbar forward flexion of 40 degrees (normal 90) and combined ROM of 120 degrees (normal 240) following repetition.  Painful motion was present.  

During the 2 May 2008 MEB NARSUM examination, 4 months prior to separation, the CI reported continued intermittent low back pain with radiation into the left hip.  Physical examination revealed an antalgic gait and spinal tenderness without muscle spasm.  Spinal ROM and posture were not addressed.  The 8 May 2008 MEB PT ROM examination showed goniometric thoracolumbar spine flexion of 70 degrees and combined ROM of 160 degrees, following repetition.  Painful motion was present, without additional loss of ROM after repetition.  There was a normal gait and no tenderness.  The CI had an abnormal spinal contour (flattened lordosis) without muscle spasm or guarding.  

The 17 July 2008, VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported low back pain with radiation into the left hip and leg.  Physical examination showed a normal gait and posture.  Spinal tenderness and muscle spasm were not addressed.  Lumbar spine ROM was flexion of 80 degrees and combined ROM of 170 degrees, with painful motion.  There was no additional ROM loss following repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing spinal tenderness and limitation of motion.  The VA also rated the back condition 10%, coded 5241, based on the C&P examination, citing limited and painful motion.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the PT and VA examinations proximate to separation.  Although the February 2008 PT ROM evaluation may have supported a 20% rating, it had decreased probative value as it was accomplished with an inclinometer, was further from separation and proximate to surgery.  There was no muscle spasm or guarding 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 that would provide for a higher rating under that formula.  After due deliberation, considering all 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.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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.

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Dear  XXXXXX

	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.
 
	A copy of this decision has been provided to the counsel you listed on your application.