RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02071
BRANCH OF SERVICE:  Army	BOARD DATE:  20150130
SEPARATION DATE:  20050705

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Air Defense Command, Control, Communications, Computers and Intelligence Tactical Operations Center Enhanced Operator) medically separated for a chronic back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was able to perform an alternative Army Physical Fitness Test aerobic event but could not perform the sit-up event.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back condition, characterized as “L5-S1 anterolisthesis and degenerative disc disease, L4-L5 annular disc bulge” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI submitted a rebuttal of the PEB findings to the U.S. Army Physical Disability Agency (USAPDA).  The USAPDA non-concurred with the CI’s rebuttal, he made no further appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20050125	VA - (2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	10%	Lumbar Spine Spondylolisthesis L5	5243	10%	20050525	
Other x 0 (Not in Scope)	Other x 2 	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050720 (most proximate to date of separation).
ANALYSIS SUMMARY:

Chronic Back Condition.  The narrative summary notes the CI developed low back pain (LBP) without specific injury while deployed.  Lumbar spine X-rays in late 2003 noted anterior slippage (anterolithesis also called spondylolisthesis) of the L5 vertebra on S1 due to a vertebral defect, felt to be acquired, which allowed the movement.  The CI did not improve with treatment, including physical therapy.  Magnetic resonance imaging on 4 August 2004 showed degenerative disc disease (DDD) and mild L5-S1 anterolithesis that resulted in mild neural foramen encroachment bilaterally.  Notes in the service treatment record through 20 August 2004 indicated there were no lower extremity (LE) symptoms, but a primary care note dated 30 June 2005 indicated LBP radiated to both legs, but there was no exam performed at that visit.  No examination in record noted any LE weakness, sensory deficits, or abnormal reflexes.

At the MEB examination on 28 December 2004, the CI reported LBP.  The MEB physical exam noted “examination is unremarkable except for back pain with flexion, extension, and rotation to the right.”  Physical therapy measured range-of-motion (ROM) on 10 December 2004 noted full thoracolumbar ROM.

The original VARD on 20 July 2005 cited the VA contract pre-discharge examination dated 25 May 2005 and noted the rating was assigned “based on your VA examination which revealed no painful or limited motion and reported X-ray findings of first degree spondylolisthesis at L5.”  The VARD also indicated that the medical evidence showed additional disability during flare-ups or repetitive use.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain) and the VA rated it 10%, coded 5243 (intervertebral disc syndrome).  The Board agreed that the evidence in record supports the 10% rating according to current VASRD rules for rating the spine in effect on the date of separation based upon full, painful thoracolumbar (TL) ROM, IAW VASRD §4.59 (Painful motion).  There was no evidence of decreased TL ROM, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or incapacitating episodes to provide a higher rating IAW 4.71a.  The Board considered if there was evidence of an unfitting radiculopathy due to the back condition to provide additional rating IAW 4.124a for peripheral nerve impairment.  A note close to the DOS indicated the CI had pain radiating into both legs but the pain component of a radiculopathy is subsumed under §4.71a (General Spine Rating) and there was no evidence in record of LE weakness or sensory deficits.  The Board concluded therefore that no additional disability rating could be recommended.  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 adjudication for the back condition.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140507, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150010556 (PD201402071)

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 of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA