Author: JOHN J. D'ORAZIO
Last saved by: WEATHERS, JANICE R SrA USAF AFRBA AFRBA/AFBCMR
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD1300036
BRANCH OF SERVICE:  Army	BOARD DATE:  20130827
SEPARATION DATE:  20040213

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (55D/Explosive Ordnance Disposal Technician) medically separated for back pain post L5/S1 interbody fusion for pars defect and spondylolysis.  The CI began having back pain in 1995 with no associated trauma.  He underwent a lumbar fusion in June 2002 and developed a wound infection.  The incision ended up healing well without incident.  Despite surgery, medications and profiling, the back condition could not be adequately rehabilitated 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 back condition, characterized as “low back pain [LBP] with decreased range-of-motion [ROM]” and “L5 radicular symptoms, status post [s/p] transforaminal lumbar interbody fusion (TLIF) of L5/S1,” was forwarded by the MEB to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The IPEB adjudicated the low back condition as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time prior to September 26, 2003.  The CI appealed to the Formal PEB (FPEB) which increased the rating to 20%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI did not concur and submitted additional evidence for review.  The case was reconsidered and the FPEB decision was affirmed.  The case was then reviewed by the USAPDA and affirmed.  The CI was medically separated with severance pay.

CI CONTENTION:  “I still have major issues with my back and continue medical treatment for pain and work ability.”  The CI also stated, “I had a total of 18 years service between active Army and Army NG, if I was only 20% disable I think I could have reclassed and stayed in.  For the military not to have considered this after 3 appeals is unexceptable [sic].  I see soldiers in way worse condition stay in.  I also see soldier with way less get retired.  This seems to be an unstable system.  I do thank you for this opportunity to appeal my case.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition (including radicular symptoms) is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20031022 | VA - (5 Mos. Post-Separation) Effective 20040214
Condition | Code | Rating | Condition | Code | Rating | Exam
Back Pain post L5/S1 Interbody Fusion for Pars Defect and Spondylolysis …  Right Lower Extremity | 5237 5099 5003 | 20% | Residuals S/P Lumbar Laminectomy | 5241 | 10%* | 20040708
| | | Radiculopathy, Right lower Extremity | 8520 | NSC* | 20040708
No Additional MEB/PEB Entries | Other x 8 | 20040708
Rating:  20% | Combined Rating:  10%
Derived from VA Rating Decision (VARD) dated 20041028 (most proximate to date of separation [DOS]).  *Increased 5241 to 20% effective 20091014 and 8599-8520 service connected at 10% effective 20100122.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that he should have been reclassified in order to stay in the Service.  This Board does not have the jurisdiction to offer remedy in reference to decisions of this nature.  That authority resides with the respective Board for the Correction of Military Records.  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of the DES fitness determinations and rating decisions for disability at the time of separation.  This Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  The Board utilizes service and DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence, which is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Back Pain post L5/S1 Interbody Fusion for Pars Defect and Spondylolysis Right Lower Extremity.  The FPEB combined the back pain and peripheral neuropathy (right leg weakness) conditions under a single disability rating, “Back pain post L5/S1 interbody fusion” (noting weakness, paresthesias and disthesias) at 20%, assigning codes 5327, 5099, and 5003.

Although the VASRD permits some combined ratings of two or more joints or conditions, it allows separate ratings for separately compensable conditions.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for service rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the FPEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the back pain and peripheral neuropathy (right leg weakness) conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Back Pain S/P Interbody Fusion.  The CI’s service treatment records first note lower back pain on 27 November 1995, without antecedent trauma, characterized as “mid lower back, non-radiating” with full active ROM, and diagnosed as “acute moderate lumbosacral strain.”  X-rays first noted “probable spondylolysis.”  A subsequent X-ray noted the presence of an “old” L5 pars fracture.  On 13 Jun 2002, the CI underwent a TLIF which stabilized the spondylolysis and spondylolisthesis.  He was readmitted 4 weeks later for a wound infection which required surgical incision and drainage, and a prolonged course of intravenous antibiotics, but which did not impact the stability of the original fusion.  On follow up examinations with the spinal surgeon, the CI noted continued lumbar pain and tenderness to palpation.

At the MEB physical exam, 11 months prior to separation, the CI reported recurrent back pain with “radiation to hip and leg bilaterally.”  The MEB physical exam noted bilateral paraspinal muscle tenderness with pain at 45 degrees of flexion.  The examination also noted bilateral hyperactive deep tendon reflexes at the knee, a decreased feeling of light touch and vibration in the right lower extremity and a tendency to fall backwards with eyes closed.  After the CI was assigned a P3 profile, his commander’s performance statement concluded that the CI was “not able to perform the duties required of his grade and MOS,” noting also that, due to the heavy work requirements in this MOS,  “55D’s may not have a P3 profile.”  The MEB narrative summary (NARSUM), dictated 9 months prior to separation, notes LBP, worse with bending, sitting, standing, twisting or sudden movements, with inability to perform physical training or activities associated with his MOS.  The MEB dated, 8 months prior to separation, found the LBP condition unacceptable for continued service.

At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported constant LBP, worse with sitting, with “sensation changes” in the right leg, and radiating “pain down the right leg,” to the buttocks, thigh and right ankle.  The CI stated that he was unable to sit or to stand for long periods.  On physical examination, the VA examiner noted a well healed and non-tender surgical scar.

The back exams and 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
(Degrees)

MEB ~8.5 Mo. Pre-Sep
(20030527)

FPEB ~4 Mo. Pre-Sep
20031022

Neurosurgery Consult ~3.5 Mo. Pre-Sep
(20031104)

VA C&P ~5 Mo. Post-Sep
(20040708)

Flexion (90 Normal) | “About 45 degrees” | | “Limitation of movement to about 75% of normal” | 90
Extension (30) | | | | 20
R Lat Flexion (30) | | | | 30
L Lat Flexion (30) | | | | 30
R Rotation (30) | | | | 30
L Rotation (30) | | | | 30
Combined (240) | | | | 230
Comment | Normal tandem gait; “decreased motion of low back”; right L5 weakness | Disability description ‘tenderness; slight antalgic gait’ | | Pain with motion; sensation and strength in lower extremities normal
§4.71a Rating | 20% | 10%-20% (FPEB 20%) | 10% | 10% (VA 10%)

The Board first considered if the back condition having been de-coupled from the combined FPEB adjudication, remained itself unfitting as established above.  The profile and commanders statement specified the back condition as interfering with duty performance and the MEB considered the back condition did not meet standards.  Treatment notes focused on the back pain and limitations from the back condition.  Members agreed that the functional limitations in evidence justified the conclusion that the low back condition was integral to the CI’s inability to perform his MOS; and, accordingly a separate rating is recommended.  
The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated just after a significant change in VASRD codes and criteria for the spine (effective September 2003).  The older codes and criteria were based on subjective ROM criteria and goniometric ROMs were not routinely required.  The new codes and criteria were in effect for the FPEB and VA ratings.

The FPEB 20% rating under codes 5327, 5099 and 5003 was based on the USAPDA pain policy.  Based on VA exam within 5 months after separation, the first VARD rated the condition at 10%, under VASRD code 5241.  Later VA rating increases were considered post-separation worsening.  The Board deliberated on an independent rating of the back condition IAW the VASRD at the time of separation noting non-goniometric exams, the FPEB disability description, and the VA goniometric ROM proximate to separation.  The Board discussed at length whether the back condition at separation was best rated at 10% or 20% IAW VASRD.  The Board majority concluded that considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations) the evidence supported a VASRD rating of 20%.  The Board also considered that IAW DODI 6040.44, the Board’s combined rating result may not be lower than the overall combined rating from the FPEB.  In this case (as will be presented below) the CI’s back is the single unfit condition eligible for rating.  Therefore, after due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.

Peripheral Neuropathy.  The MEB diagnosis of “right L5 radicular symptoms” was listed as medically unacceptable.  The NARSUM indicated “permanent nerve damage lower extremities” with “radiculopathy,” noting residual neurological changes with “loss of feeling light touch and vibration” in the right lower extremity, but without documentation of any weakness.  The results of electromyogram (EMG) noted “minimally abnormal EMG of right lower limb suggestive of irritability at the L5 and S1 levels,” and CT of the lumbosacral spine on revealed normal intervertebral discs, patent neuroforamina, and an otherwise normal examination, except for the evidence of his previous lumbar surgery.  In a letter to the MEB, (NARSUM addendum) dated 3 October 2003, the spinal surgeon appealed the conclusion of the MEB and stated that the CI had “dermatomal leg pain with mild weakness [intermittent and minimal (“5-/5”) motor weakness of the right extensor hallucis longus muscle] in the L5 distribution,” but noted, at the same examination, a normal gait and no ataxia.  The CI’s profile did not list right leg weakness as a medical condition for which duty was limited.  Five months after separation, the C&P examination reported a normal neurological examination with no evidence of radiculopathy.

The Board first considered if the peripheral neuropathy condition, having been de-coupled from the combined FPEB adjudication, remained itself unfitting as established above.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting.  The well-established principle for fitness determinations is that they are performance based.  The Board could not find evidence in the commander’s statement or profile that documented any significant interference of leg weakness or sensory deficit (peripheral nerve condition) with the performance of duties at the time of separation.  The pain component of the neuropathy is appropriately subsumed in the spine rating, and the dermatomal sensory component was inconsequential to fitness in this case.  Board members agreed that the intermittent and minimal motor weakness would not logically be associated with significant disability.

After due deliberation, members agreed that the evidence does not reasonably support a conclusion that the functional impairment from any peripheral neuropathy was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.  The Board concluded that there was insufficient cause to recommend a right leg radiculopathy as an additionally unfitting condition for disability rating, and no additional disability rating is recommended.

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, FPEB reliance on the USAPDA pain policy for rating the LBP condition was operant in this case, and the condition was adjudicated independently of that policy by this Board.  In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right leg radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Low Back Pain Condition | 5237-5099-5003 | 20%
RATING | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121207, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX, AR20130021944 (PD201300036)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1300036