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AF | PDBR | CY2012 | PD 2012 01757
Original file (PD 2012 01757.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2012-01757
BRANCH OF SERVICE: Army  BOARD DATE: 20141015
SEPARATION DATE: 20030727


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army PFC/E-3 (14T10/Patriot Launching Station Operator/Maintainer) medically separated for low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “lumbar pain, severe, L4 spondylolysis & L4/5 spondylolisthesis” and “degenerative L4/5 disc, non-radicular pain,” were forwarded to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The Informal PEB adjudicated “low back pain, status post fusion and instrumentation for acute onset of back pain attributed to a fall” as unfitting rated 20%. The CI appealed to the Formal PEB which affirmed the PEB finding and rating.


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting LBP condition is addressed below; 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 Corrections of Military Records.


 RATING COMPARISON :

Service FPEB – Dated 20030528
 VA - (12 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain, s/p Fusion and Instrumentation for acute onset of Back Pain attributed to fall 5299-5295 20% Residuals of Lumbar Spine Laminectomy and Interbody Fusion; Bilateral PARS Interarticular Fractures L4 with Grade 1 Subluxation 5293-5292 30% 20040803
Other x 0 (Not in Scope)
 Other x 6
Combined: 20%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 30813 ( most proximate to date of separation [ DOS ] ). The original C&P that resulted in the original rating is not available for review. The next C&P exam available was dated 20040803.


ANALYSIS SUMMARY: The 2003 Veterans Affairs Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were updated on 23 September 2002 for code 5293 (incapacitating episodes) and then changed to the current §4.71a rating standards on 26 September 2003. The older VASRD standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. The VASRD normal ROM values were not in effect prior to 26 September 2003 and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately. For the reader’s convenience, the 2003 rating codes under discussion in this case are excerpted here.

5292 Spine, limitation of motion of, lumbar:
Severe……….40; Moderate……….20; Slight……….10
5293 Intervertebral disc syndrome:
With incapacitating episodes having a total duration
…of at least two weeks but less than four weeks during the past 12 months.......20
…of at least one week but less than two weeks during the past 12 months ........10
5295 Lumbosacral strain :
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign,
marked limitation of forward bending in standing position, loss of lateral motion
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ........................................................ 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position……………………20
With characteristic pain on motion..................10
With slight subjective symptoms only...............0

Low Back Condition. The CI fell onto her buttock while carrying a load on her back in Basic Military Training in July 2002. She experienced low back and left leg pain. Initially diagnosed as a sprain, multiple modalities of conservative treatments failed to provide her any pain relief. Radiology tests revealed slippage of the lumbosacral vertebra associated with disc disease. In November 2002, she underwent a neurosurgical spinal fusion of L4 and L5. Two months after surgery, physical therapy (PT) documented decreased and painful motion to her lumbar spine.

At the narrative summary dated 6 January 2003 (6 months prior to separation and 7 weeks after surgery) the CI endorsed continued left leg symptomatology. The physical examination revealed an altered gait (limp) and her use of a cane. There was limited and painful motion of the lumbar spine as well as tenderness and spasms present. Her left lower extremity revealed minimal decrease in strength and sensation as compared to her right side. Additionally, the left straight leg raise was positive and a Goldthwaite's sign (suggesting a lumbosacral lesion) was present at 45 degrees (positive is between 30 and 60 degrees). Her diagnosis remained as noted under her surgical procedure…and additionally noted, “non-radicular pain involving the lumbar spine, secondary to degenerative L4-L5 disc.” Her permanent profile implicated the same fusion diagnosis and the commander’s statement clearly indicated that her physical limitations prevented her from performing her military duties. Her prognosis was “with proper healing and rehabilitation, the [CI] is expected to return to duty without limitations as early as six months postoperatively.”

The original VARD indicated that the VA’s rating was based upon the service’s pre-discharge examination dated 28 July 2003, which is currently missing from the file. A subsequent VARD indicated a 30% impairment rating was adjudicated for the low back condition based upon limited motion. A more remote VA examination was performed 12 months after separation. 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.
DOS 20030727
Thoracolumbar ROM
(Degrees)
 PT (same time as MEB) ~6 Mo. Pre-Sep
(20030128)
VA C&P ~1 2 Mo. Post-Sep
(20040803)
Flexion (90 Normal)
 70 30
Extension (30)
 10 5
R Lat Flexion (30)
 15 10
L Lat Flexion (30)
 15 10
R Rotation (30)
 30 10
L Rotation (30)
 25 10
Combined (240)
 165 75
Comment
 limp gait ; (+) spasm Antalgic gait; (+) spasm
§4.71a Rating
 20 % 20%- 40 %

The Board directs attention to its rating recommendation based on the above evidence. It is obvious that there is a clear disparity between the pre- and post-service separation exams charted above, having very significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated its probative value assignment to these differing evaluations and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation. DoDI 6040.44 specifies a 12-month interval from the service separation date for special consideration to VA findings. In this case, the VA exam was at the maximum time limit under the DoDI. Board members agreed that based upon time reference to service separation date, the higher probative value was placed on the PT/MEB examination which is 6 months closer to separation as compared to the VA exam. Both the PEB and VA applied similar codes of 5295 (lumbosacral strain) and 5292 (lumbar; limitation of motion) respectively, which was appropriate to the presenting pathology as well as the VASRD guidelines in place at the time of separation. Board members considered the ROM in the probative examination would support no more than slight (10%) rating under 5292. However, the presence of spasms coupled with an altered gait clearly supports the 20% rating under code 5295 (PEB’s current code). Board members extensively considered, debated and concluded that despite the evidence of a positive Goldthwaite's sign, the associated modifiers implicating either “marked” or “severe” symptoms were not sufficiently present, and therefore, not supporting the 40% impairment level. 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 lumbar spine 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 low 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 20140801, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX , AR20150003721 (PD201201757)

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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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