RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201170 SEPARATION DATE: 20020215 BOARD DATE: 20130307 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Subsistence Specialist), medically separated for chronic low back pain (LBP) status post (s/p) fusion for spondylolisthesis. The CI sought care for back pain in August 1999 after injuring her back while doing a physical fitness test. In April 2000, she underwent an anterior release and posterior spinal fusion for spondylolisthesis. Post-operatively the course was complicated by wound dehiscence and deep infection requiring two I&D’s. In January 2001 she underwent removal of the hardware. Her back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS). Her profile allowed for an alternate physical fitness test. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Mitral valve prolapse (MVP) which was asymptomatic, identified in the rating chart below, was also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the low back condition as unfitting, rated 10%, with application of the Department of Defense Instruction (DoDI) 1332.39. The remaining condition was determined to be not unfitting and therefore not rated. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: The CI elaborated no specific contention in her application. 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. 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 IPEB – Dated 20011025 VA (9 Mos. Post-Separation) – All Effective Date 20020216 Condition Code Rating Condition Code Rating Exam Low Back Pain 5299-5295 10% Post Decompression and Spinal Fusion for Spondyolisthesis L5-S1 5295 20%* 20021126 Mitral Valve Prolapse Not Unfitting No VA Entry .No Additional MEB/PEB Entries. 0% X 1 / Not Service-Connected x 0 20021126 Combined: 10% Combined: 20% *Increased to 100% on 20080709 and then reduced to 40% effective 20081001. The 0% rating increased to 10% on 20101108. ANALYSIS SUMMARY: The Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The Board’s authority as defined in DoDI 6044.40 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Chronic Low Back Pain, Status Post Fusion for Spondylothesis. The 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards on 26 September 2003, and were identical to the interim VASRD standards used by the VA in its rating decision. The ratings prior to 26 September 2003 were based on a judgment as to whether the disability was mild, moderate or severe. The current standards are grounded in range-of-motion (ROM) measurements. IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation. ROM in evidence is provided in the following table: Thoracolumbar ROM MEB ~6 Mo. Pre-Sep VA C&P ~7 Mo. Post-Sep Flexion) 45 60 Ext 20 15 R Lat Flex 25 20 L Lat Flex 25 20 R Rotation - 30 L Rotation - 30 §4.71a Rating 20% 20% At the orthopedic surgery MEB exam in August 2001, 6 months prior to separation, the CI described the intensity of her back pain as 3/10, whereas her pain was 10/10 before surgery. She reported no radicular pain, whereas she experienced 10/10 radicular pain before surgery. She reported lower back discomfort when riding in a vehicle, cold weather, and changes in the weather. She was able to walk without limitation. When she was in a forward flexed position, she placed her hands on her thighs in order to return to a standing position. The orthopedic surgeon noted a well-healed incision with mild tenderness. Her lower extremity strength was 5 out of 5 (normal). Her hamstring muscles were mildly tight with full extension in a sitting position; hip ROM was normal. Deep tendon reflexes (DTR) were 2+ (normal) at the knees and ankles. Her gait was normal and non-painful. X-rays of the lumbar spine (June 2001) showed posterior spinal fusion from L4 through S2; the original Grade 5 spondylolisthesis was reduced to Grade 4 per the official radiology report, although the orthopedist stated it was reduced to Grade 3. The alignment of the lumbar spine was normal and there was no significant bony abnormality. At the VA Compensation and Pension (C&P) exam in November 2002, 9 months after separation, the CI reported that the LBP was aggravated by prolonged standing or sitting, bending, or lifting. Bending or lifting also produced stiffness or spasm in her leg muscles. When standing for a prolonged time (she was employed as a cashier), she could temporarily alleviate the pain by lifting a leg and resting it on the counter. She took ibuprofen for pain as needed. She had no history of sudden episodes of instability, weakness, incoordination, or easy fatigability. The examiner noted a normal gait and marked tenderness over the lumbar spine without paravertebral muscle spasm. Lower extremity muscle strength was 5+ (normal). There were no sensory deficits. Straight leg raise (SLR) testing was limited to 45 degrees bilaterally with marked tightness of the hamstring muscles. Knee reflexes were normal. The right ankle reflex was normal and the left ankle reflex was absent. Plantar reflexes were normal. The examiner noted pain at the extremes of ROM. X-rays of the lumbar spine, on the same date, showed fusion of the L4/5 vertebral bodies and hardware and alignment of the vertebral bodies. The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both applied code 5295 IAW 2002 VASRD. The PEB’s 10% rating was based on “characteristic pain on motion.” The VA assigned a 20% rating for “muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in a standing position.” The Board agreed that a 20% rating was supported under 5295 by the documentation of persistent loss of lateral spine movement in a standing position; or under the 5292 code (limitation of lumbar motion) for “moderate” limitation of motion. The Board further agreed that limitation of motion in evidence did not justify a 40% rating under the 5292 or 5295 codes, and concluded that other 40% criteria under 5293 (intervertebral disc syndrome) and 5295 were also not present. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic LBP condition, coded 5292. 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 was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic LBP s/p fusion condition the Board unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a. 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 her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Low Back Pain Status-Post Fusion 5292 20% RATING 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120206, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130007620 (PD201201170) 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 rating to 20% without 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)