RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200686 SEPARATION DATE: 20031031 BOARD DATE: 20121221 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (13M/Multiple Launch Rocket System Operator), medically separated for chronic low back pain (LBP) due to degenerative disc disease (DDD) with Bertolotti’s Syndrome (partial sacralization L5-S1). The CI first injured his back in a motor vehicle accident (MVA) in 2001 which worsened after being kicked by a horse in May 2002. He did not respond adequately to non-operative therapy to include multiple facet epidural and pseudoarthrosis injections and physical therapy to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded the two conditions of DDD of multi level discs in the lumbar spine and Bertolotti's syndrome for Physical Evaluation Board (PEB) adjudication. The PEB combined DDD of multi-level discs in the lumbar spine condition and Bertolotti’s Syndrome condition as “Chronic Low Back Pain due to Degenerative Disc Disease with Bertolotti’s Syndrome” and adjudicated it as unfitting, rated 10% with application of the Department of Defense Instruction (DoDI) 1332.39. There were no other fitting or unfitting conditions identified. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “My initial rating for cervical strain & DDD with Bertolotti’s Syndrome should be reviewed because it was only partially addressed in the medical board. Other issues occurred at the same time of the injury that are documented in my service medical record, i.e. hips, legs, that have gone unnoticed. I was noted to have a hip deficiency of 11mm which required orthodic heel lifts to address the hip and back pain. I feel that my rating was given based on that I had a disability & not how severe the disability is. In regards to my back there were more problems documented in my spine/neck than just my L4-L5 area alone. My service records and VA medical records will reflect this. Also I have finally been able to get the VA to address that my injuries are secondary to the same injury. These records to include disability for my hips and mood (anxiety/PTSD) are included” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The rated condition chronic LBP due to DDD with Bertolotti’s Syndrome as requested for consideration is the only condition that meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below. The remaining conditions rated by the VA at separation and listed on the DD Form 294 are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service PEB – Dated 20030924 VA (3 Mos. Post-Separation) – All Effective Date 20031101 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain due to DDD and Bertotolli’s Syndrome 5299-5295 10% Degenerative Disc Disease with Bertolotti’s Syndrome and Low Back Strain 5243-5237 10% 20040124 .No Additional MEB/PEB Entries. Cervical Strain 5237 10% 20040124 Combined: 10% Combined: 20% Note: CI received a VARD dated 20041020 which was 11 months after separation but received the same VA Ratings for his conditions with nothing added. ANALYSIS SUMMARY: The PEB combined DDD of multi-level discs in the lumbar spine and Bertolotti's syndrome as the single unfitting and solely rated condition, coded analogously to 5299-5295. Bertolotti's syndrome is a lumbar spine condition and was appropriately combined for rating with the lumbar spine DDD. The PEB rating was under the old spine rules prior to the 26 September 2003 effective date of the current Veterans Administration Schedule for Rating Decisions (VASRD) spine criteria. Since the CI’s 31 October 2003 date of separation was after that effective date, the PDBR rating recommendation is based on the newer VASRD spine criteria which were effective on the date of separation. The Board considered the commander’s statement in detail. Chronic Low Back Pain due to Degenerative Disc Disease and Bertotolli’s Syndrome Condition. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Thoracolumbar ROM MEB ~3 Mo. Pre-Sep (20030808) VA C&P ~3 Mo. Post-Sep (20040124) Flexion (90° Normal) 20° 80° Ext (0-30) 10° 20° R Lat Flex (0-30) 10° 20° L Lat Flex 0-30) 10° 30° R Rotation (0-30) - 30° L Rotation (0-30) - (30°) 45° Combined (240°) - 210° Comment Negative SLR; normal strength, reflexes, and sensory exam (See text) Gait normal; + mild tenderness; no spasm; ROM not painful; normal neurologic exam §4.71a Rating 40% (PEB 10%) 10% At the MEB exam, the CI reported “low back pain and stiffness without leg symptoms.” The MEB physical exam noted normal muscle strength of the lower extremities, no loss of reflexes, and normal sensory perception. The exam is summarized above with the charted ROMs extracted from the quoted: “Range of motion, he has 10 degrees of extension, bending left and right of the lumbar spine and can flex 20 degrees.” No spasm, abnormal spine contour or gait was addressed or documented. The examiner stated “This would be considered mild intervertebral disc syndrome”. Imaging documented partial sacralization L5-S1 (Bertotolli’s Syndrome), lumbar degenerative joint disease (DJD), with central asymmetrical disk bulge or broad-based disk protrusion, with mild impingement on the thecal sac, but no central canal stenosis. Treatment notes from physical medicine, 5 months prior to separation indicated forward flexion to 60 degrees with pain; subsequent pain clinic evaluation 2 days later documented pain-limited extension to 15 degrees with forward flexion to 90 degrees. At the VA Compensation and Pension (C&P) exam 3 months after separation, the CI reported LBP, 6/10 scale, worse with bending, sitting or lifting heavy weight. The CI reported that flare ups would cause temporary decrease in ROM due to pain and stiffness. The CI denied bowel or bladder problems and was able to walk 1-1/2 to 2 miles. The examiner stated “his day-to-day activities are not precluded by the spine condition. He works as a full-time student.“ The C&P exam is summarized above. The remote from separation, VA exam in November 2006, documented slight pain-limited ROM and the VA continued their 10% rating based on that exam. The Board directs attention to its rating recommendation based on the above evidence. The PEB coded 5299-5295, lumbosacral strain at 10% for characteristic pain on motion. The PEB was one day after the effective date of the new spine rules and use of code 5295 and the PEB disability description indicates application of the older spine rating criteria with application of DoD and service specific rules. The VA 10% rating was coded 5243-5237 using the newer VASRD spine criteria and coding. No records documented periods of incapacitation or fixed peripheral neuropathy. The service exam and the VA exam indicated major differences on the ROM measurement. It is obvious that there is a clear disparity between these examinations, with very significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation. The exams were about the same time prior to and after separation. The exam did not address gait or any other functional criteria that would align with the significant ROM limitations noted, and the exam was otherwise considered “mild.” The VA exam was more comprehensive. The Board considered the tenants of VASRD §4.7 (higher of two evaluations), but determined that the CI’s disability picture best fit the disability level noted at the C&P exam and that this exam held the higher probative value with respect to the CI’s condition at discharge. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s 10% adjudication for the chronic LBP due to DDD with Bertolotti’s Syndrome condition; However, the disability code should be administratively corrected to 5243-5237, as code 5295 was no longer in effect at the date of separation. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on DoDI 1332.39, AR 635-40, Appendix B·39, and the older VASRD were operant in this case and the condition was adjudicated independently of those instructions by the Board, and with use of the VASRD effective at the time of separation. In the matter of the chronic LBP due to DDD with Bertolotti’s Syndrome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s 10% rating adjudication, but a modification to coding to 5243-5237 to comply with the applicable VASRD. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Low Back Pain due to Degenerative Disc Disease with Bertolotti’s Syndrome 5243-5237 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120606 w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXX, AR20130006068 (PD201200686) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability description without modification of the combined rating or recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)