RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03385
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050121

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

CI CONTENTION:  The CI submitted a detailed contention for a higher rating based on having undergone two separate spinal fusions and additional pain and problems the condition has caused.  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 - 20041209	VARD - 20050329	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Low Back Pain Secondary to Two Level Spinal Fusion at L4-5 and L5-S1	5241	10%	Spinal Fusion Residuals	5243	20%	20050316	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Persistent Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent L5-S1 discectomy, L5-S1 posterior lumbar interbody fusion, L5-S1 posterolateral fusion with pedicle screw instrumentation and iliac crest autograft on 6 October 2003.  Post-surgical X-rays showed postoperative changes of laminectomy and posterior fusion were noted at L5-S1 with metal rod and threaded screws through the pedicles of L5 and S1.  The interbody bone plug at L5-S1 was in place showing no protrusion.  Normal alignment of the vertebral body was seen. 

Six weeks postoperatively the CI complained of low back spasms intermittently and the low back pain gradually improved by 85-90%.  X-rays dated 14 January 2004 showed maintenance of the bony alignment with surgical changes at L5-S1 and intact hardware.  On 4 February 2004, the CI reported low back pain since feeling a pop in his back when he bent over in the first week of December 2003.  A myelogram dated 17 February 2004 showed findings most consistent with a herniated nucleus pulposus, status post fusion at L5-S1 with mild underfilling of the distal thecal sac, which could have been a postoperative finding of possible arachnoiditis.  On 20 July 2004, the CI underwent a re-exploration of the prior operative site, an L4 laminectomy, L4-5 posterior lumbar interbody fusion with allograft, L4 to S1 posterolateral fusion with pedicle screw instrumentation and an iliac crest bone graft.  Post-operative X-rays revealed L4-5 and L5-S1 interspaces were well maintained by means of interbody spacers.  There was normal alignment and volume of the vertebral bodies.  At 2 months postoperatively the CI reported stiffness in the morning and pain in the evening; however, he was 75-80% improved overall.  Physical therapy range of motion (ROM) on 22 November 2004 recorded active flexion of 20 degrees (normal 90) and combined ROM of 120 degrees (normal 240) with painful motion.  

During 30 November 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported two spinal fusions.  Physical examination revealed decreased ROM of the lumbar spine and mild tenderness at S1.

The 30 November 2004 MEB NARSUM examination, 2 months prior to separation, showed no obvious deformities, normal alignment.  There was mild tenderness from L4 to S1 with no erythema or edema.  A straight leg raise (to determine nerve root irritation) was positive, the right greater than the left.  Physical therapy measurements noted above were apparently incorporated into the NARSUM.  Lumbar flexion was 20 degrees with 8/10 pain and combined ROM of 120 degrees with pain.  The CI’s gait was normal with 2+ reflexes and normal sensation.

At the 16 March 2005 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported low back pain.  Physical examination showed a normal posture with mild lumbar flattening.  There was no muscle spasm or guarding.  ROM measurements were flexion of 50 degrees with pain and a combined ROM of 185 degrees with pain at extension and lateral rotation.  There was no loss of motion with repetitive use.  Neurologic evaluation was unremarkable.  X-rays on 16 March 2005 revealed a laminectomy at L4-L5 with cage prostheses in the disk spaces of L4-L5 and L5-S1 and a fusion with intrapedicular screws and plates in the posterior aspect of the spine.  Bone grafts were noted between the transverse processes and alignment was satisfactory.  

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 “thoracolumbar range of motion and forward flexion limited by pain, tender to palpation.”  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing limitation of flexion of the lumbar spine to 50 degrees.

Although the PEB noted forward flexion was 20 degrees prior to separation, in actuality it was a measurement using an inclinometer of the lumbosacral spine rather than the thoracolumbar spine ROM specified by the VASRD (§4.71a, Plate V).  When combined with a normal thoracic ROM, this would represent approximately 50 degrees of thoracolumbar flexion correlating with a 20% rating using the current VASRD general spine rating formula.  Furthermore, the VA examination ROM for flexion was 50 degrees and was more proximate to separation.  Its evaluation approximately 6 months after surgery, more closely represents the CI’s permanent disability after a reasonable period of rehabilitation especially after a second back surgery.
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 persistent back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, 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	
Persistent Low Back Pain	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

AR20180008983, 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