RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-04057
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090505

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

CI CONTENTION:  The back condition has continued to worsen and negatively affects daily activities.  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 - 20090312	VARD - 20090824	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion	5241	20%	L5-S1 Interbody Fusion	5241	20%	20090709	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Spinal Fusion.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent an L5-S1 interbody fusion with hip graft in May 2008.  The CI continued to have back pain.  Postoperative X-rays revealed good position of the pedicle screws and rods, good position of the interbody cages, and evidence of progressive incorporation of the posterolateral graft material from L4 through the sacrum.  At a pain clinic visit on 19 February 2009 the CI reported lower back pain with a severity of 5-9/10 with a sharp, shooting pain along his bilateral posterior legs and terminating in his heels.  On examination there was no tenderness and musculature, reflexes, and range of motion (ROM) of the lower extremities were normal.  ROM testing of the lumbar spine showed flexion of approximately 70 degrees (normal 90), limited by pain, and extension of 5 degrees (normal 30) causing back and bilateral S1 and S2 radicular pain.     

During the 26 January 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported prolonged standing caused pain, tingling and numbness from the low back to both feet.  Physical examination revealed decreased motion with flexion of 30 degrees and extension of 10 degrees with pain for all movements.  He had increased tenderness from L1 to L5 in the bilateral sacrospinalis areas.  

The 18 February 2009 MEB NARSUM examination, 3 months prior to separation, showed diffuse tenderness in the midline and in the lower lumbar spine as well as the sciatic notches.  The CI had limited motion in all planes due to pain.  Motor strength was full and sensation was intact.  Deep tendon reflexes were appropriate and there was no ankle clonus.  Straight leg raising (to determine nerve root irritation) produced lower back pain bilaterally.  Physical therapy (PT) ROM measurements on 29 February 2009 were 40 degrees of flexion and combined ROM of 135 degrees (normal 240) with painful motion.  
 
At the 9 July 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported daily back pain at a level of 6-7/10 with flare ups twice every 2 weeks.   Physical examination showed mild tenderness of the paravertebral muscles of the lumbar spine without spasm, weakness, tenderness, atrophy or guarding.  The gait was normal as was the spinal contour.  Muscle strength, reflexes and sensation in the lower extremities was normal.  Forward flexion was 60 degrees with pain and combined ROM was 110 degrees (normal 240).  X-rays demonstrated previous surgical changes at L4 through S1 levels with first degree spondylolisthesis of L5 over S1.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion), citing forward flexion of 45 degrees with consideration given to VASRD §§§4.10, 4.40, and 4.59.  The VA also rated the back condition 20%, coded 5241, based on the C&P examination, citing forward flexion not greater than 60 degrees and combined ROM not greater than 120 degrees.  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 as reported on the PT and VA ROM examinations.  While the MEB examination reported flexion of approximately 30 degrees, the PT examination was much more accurate, used a goniometer and was more proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which 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.

  

AR20190007233, 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.