RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02147
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Satellite Communications Systems Operator, medically separated for “chronic back pain, status post L5-S1 fusion” with a disability rating of 10%.  

CI CONTENTION:  “I continue to experience trouble with my hips and legs, in addition to constant back pain.”  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 - 20050104	VARD - 20050531	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain… 	5241	10%	Status Post Fusion of L5-S1 for Bertolotti Syndrome	5241	20%	20050506	
			Scar, Residual of Back Surgery	7804	10%	20050506	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI had a long history of low back pain (LBP) as a result of transitional vertebra or Bertolotti syndrome (congenital/developmental back condition).  On 6 April 2004, he underwent surgery to have the L5 vertebra fused to the sacrum, and an MRI in August 2004 was normal.

The 29 July 2004 MEB NARSUM examination, 9 months prior to separation, noted CI complaints of chronic LBP.  Physical examination showed some tenderness around the scar, but no erythema or drainage.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 29 July 2004, showed flexion of 65 degrees (normal 90) and combined ROM of 200 degrees (normal 240) after repetition.  

An MRI on 26 October 2004, 6 months before separation, revealed posterior fusion from L5 to S1, and mild broad-based disc bulges at L3-4 and L4-5 with mild facet arthropathy and “artifact limiting” the evaluation.  At the PT visit on 30 November 2004, 5 months prior to separation, the CI reported LBP rated at 6/10, and thoracolumbar ROM measurements after repetitive motion showed flexion of 15 degrees and combined ROM of 95 degrees.  The examiner noted the CI was “hesitant to move 2° (due to) pain,” and there was no measurable movement during extension.  

At the 6 May 2005 VA Compensation and Pension (C&P) examination, 1 week after separation, the CI reported constant sharp back pain rated at 4/10.  Physical examination showed right paralumbar muscle guarding, and thoracolumbar ROM revealed flexion of 40 degrees and combined ROM of 165 degrees.  Painful motion was noted and repetitive flexion caused additional limitation due to pain/muscle guarding.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain.  The VA rated the low back condition 20%, coded 5241 (spinal fusion), based on the C&P examination, citing lumbar spine flexion limited to 40 degrees and associated with pain.  Members deliberated over the probative value of the disparate examinations in evidence.  While the limitation of thoracolumbar flexion recorded at the 30 November 2004 PT evaluation supported the threshold for a 40% rating, it appeared to be an outlier, with examiner comments that did not align with complete, active ROM measurements.  Because the more detailed C&P examination was closest to separation and corroborated the preponderance of STR evidence, the panel placed greater probative value on it, and agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  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.  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 5241.  

BOARD FINDINGS:  In the matter of the chronic back pain, status post L5-S1 fusion, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain, Status Post L5-S1 Fusion	5241	20%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170405, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180011602, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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