RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04997
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Petroleum Supply Specialist, medically separated for “spinal fusion…L5-S1” with a disability rating of 20%.

CI CONTENTION:  “Spine is getting worse.  Recent MRI shows ruptured and eroding disc above previous spinal fusion S1, L5, L4.”  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 - 20090929	VARD - 20100226	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion…L5-S1	5239-5241	20%	Status Post Lumbar Fusion 	5242	20%	20090828	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Spinal Fusion…L5-S1.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent an L5-S1 spinal fusion in March 2009.  Post-separation X-rays in June 2009 showed fusion without complications, unchanged L5 on S1 anterolisthesis and mild unchanged scoliosis.  Despite surgery the CI continued to have low back pain, numbness and tingling, but the left lower extremity pain resolved.

During the 10 June 2009 MEB NARSUM Addendum, 7 months before separation, the CI reported low back pain aggravated by bending or lying flat on his back.  Physical examination showed normal gait and spinal contour without tenderness, muscle spasm or guarding.  The bilateral legs showed decreased response to stimulation, but motor strength was normal.  Repetitive thoracolumbar spine flexion was 60 degrees (normal 90) and combined range of motion (ROM) was 180 degrees (normal 240), with painful motion.  

At the 28 August 2009 VA Compensation and Pension (C&P) examination, 4 months before separation, the CI reported pain and decreased mobility.  Physical examination showed a normal gait and spinal contour without tenderness, but there was muscle spasm and guarding.  No sensory deficits noted.  

The 11 September 2009 MEB NARSUM examination, 4 months prior to separation, noted constant back pain.  Physical examination showed a normal gait and the ability to heel and toe walk.  There was spinal tenderness but no muscle spasm.  Straight leg raise testing was positive and there was decreased sensation to light touch and pinprick of the left thigh, but lower extremity reflexes, motor strength and tone were all normal.   Goniometric ROM testing showed flexion of 60 degrees and combined ROM of 185 degrees, with painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, dual coded 5239-5241 (spondylolisthesis or segmental instability-spinal fusion) citing limitation of flexion.  The VA also rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion.  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 MEB NARSUM examinations proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes that would provide for a higher rating under that formula.  
Although there was evidence of radiculopathy, there was no objective evidence of a functional impairment (such as weakness) that directly impacted fitness for duty.  Therefore, the panel concluded that an additional disability 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 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.

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