RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20060306
NAME: XXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200351
BOARD DATE: 20121129
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered
individual (CI) was an active duty SSGT/E‐6 (11B/Infantry), medically separated for a low back
condition. He did not respond adequately to surgical and post rehabilitative treatment and was
unable to perform within his Military Occupational Specialty (MOS), meet worldwide deployment
standards or meet physical fitness standards. He was issued a permanent L3 profile and underwent
a Medical Evaluation Board (MEB). Post‐Laminectomy syndrome was forwarded to the Physical
Evaluation Board (PEB) IAW AR 40‐501. No other conditions appeared on the MEB’s submission.
The PEB (PEB) adjudicated the low back condition as unfitting, rated 10% with likely application of
the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and
was medically separated with a 10% disability rating.
CI CONTENTION: “Prior to leaving military the member was also diagnosed with nerve damage
from L5‐S 1. Member has had continuous issues with the injury since separation. Because of the
fusion the member is unable to seek jobs which require lifting over 50 Ibs, prolonged; sitting,
walking, or standing”.
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:
VA (6 Mos. Pre‐Separation) – All Effective Date
Condition
Post Laminectomy
Syndrome, S/P
Laminectomy and L5‐S1
Fusion with Residual L4‐5
Herniated Nucleus
Pulposus
Tinnitus
Hiatal Hernia with
Gastritis and Duodenitis
20060307
Code
Ratin
g
Exam
5241‐
5243
20%
20051017
6260
7399‐
7346
10%
10%
20051017
20051017
20051017
Service PEB – Dated 20051013
Condition
Code
Rating
Chronic Back Pain
S/P L5‐S1 Fusion
5241
10%
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 10%
0% X 3 / Not Service‐Connected x 3
Combined: 40%
ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should
have been conferred for other conditions diagnosised at the time of separation. The Board wishes
to clarify that it is subject to the same laws for disability entitlements as those under which the
Disability Evaluation System (DES) operates. 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.
However the Department of Veterans Affairs (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 utilizes DVA evidence proximal to
separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12‐month interval for
special consideration to post‐separation evidence. The Board’s authority as defined in DoDI
6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating
decisions for disability at the time of separation. Post‐separation evidence therefore is probative
only to the extent that it reasonably reflects the disability and fitness implications at the time of
separation.
Low Back Condition. The CI injured his back in 1994 which was treated conservatively as a low back
strain. He continued to have intermittent pain and spasms but was able to function and perform
his duties with use of nonsteroidal anti‐inflammatory medications. In 2003 he had worsening pain
and reported lack of movement of his right leg while in Kuwait and X‐rays demonstrated
spondylolisthesis (displacement of the vertebra) yet he continued to perform his driver duties of a
Bradley Vehicle while in Iraq. Upon return redeployment he was evaluated and treated by physical
therapy, chiropractic care, and neurosurgery for magnetic resonance imaging (MRI) confirmed L5‐
S1 spondylolisthesis and L4‐5 disc bulge. In December 2003 he underwent a laminectomy and
fusion of L5‐S1 for definitive care and responded well to post rehabilitative care to return to duty in
July 2004. However, during field training he experienced significant pain with the wearing of his
gear. He was reevaluated for by all services and another MRI with no new diagnoses. The
recommendations were to continue conservative management and he was subsequently placed on
the pain modifier medication, Gabapentin, and narcotic based pain medication, Vicodin, by pain
management. The profile documented chronic lumbar back pain, status post (s/p) laminectomy
with fusion and L4‐5 herniated nucleolus pulposus (HNP) as an L3 with the following limitations; no
sit‐ups, 2 mile run, lifting greater than 75 pounds, and marching with standard field gear greater
than 5 miles. The commander’s statement additionally documented the CI was totally incapable of
performing duties in a combat environment or performing the duties of an Infantry Squad/Section
Leader due to the back condition. There were two goniometric range‐of‐motion (ROM) evaluations
in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving
at its rating recommendation; as summarized in the chart below.
Thoracolumbar
MEB ~8 Mo. Pre‐Sep
VA C&P ~6 Mo. Pre‐
ROM
(Degrees)
Ext (0‐30)
Flexion (90 Normal)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240)
§4.71a Rating
Comment
65
15
30
30
25
25
190
10%
Sep
60
30
30
30
30
30
210
20%
Spasm, painful motion
Painful motion
The MEB physical exam demonstrated a tender lower lumbar spine, 10 cm midline scar,
paravertebral spasm that limited ROM, 7 of 10 in intensity for painful motion, and no demonstrable
neurologic findings. The exam was silent to gait or spine contour findings. The most proximate MRI
2 PD1200351
of the lumbar spine revealed s/p posterior LS‐S 1 fusion, 5 mm spondylolisthesis LS‐S1 and L4‐L5
disc herniation with new extrusion. The examiner opined the CI would require some activity
modification to function on a normal daily basis, pain management including pain medications, pain
modifiers, and muscle relaxants and may require future lumbar steroid injections and or further
surgery for the L4‐5 HNP. At the VA Compensation and Pension (C&P) exam performed prior to
separation, the CI reported low back pain 7 of 10 in intensity with radiation to bilateral legs, left
greater than right, worse with physical activity to include; heavy lifting, walking standing and
running, relieved with rest, and the pain modifier medication, Gabitril, and the narcotic based
medication, Hydrocodone. The CI reported he could function with medication and additionally
reported 2 incapacitation episodes which required bed rest in the last year, lasting for 15 days with
time lost from work. The C&P exam additionally demonstrated a normal gait, normal posture, no
signs of intervertebral disc syndrome and no Deluca observations. X‐rays revealed instrumented
spinal fusion L5‐S1 with anterolisthesis (anterior displacement) 5mm of L5 on S1.
The Board directs attention to its rating recommendation based on the above evidence. The PEB
and VA applied different VASRD codes, but were subject to the same rating criteria IAW §4.71a—
Schedule of ratings–musculoskeletal system under the general rating formula for diseases and
injuries of the spine. The Board agreed the VA chosen analogous code 5241‐5243 (spinal fusion‐
Intervertebral disc syndrome) best captures the clinical pathology in this case. The Board notes that
both the MEB and VA exams were complete, well documented, and compliant with VASRD §4.46
(accurate measurement). However while the MEB and VA were similar in terms of ratable
combined ROM data in which both meet the 10% criteria, the MEB flexion ROM data meets the 10%
criteria and the VA meets the 20% criteria. The Board thus carefully reviewed the file for
corroborating evidence in the 12‐month period prior to and post separation and found one flexion
ROM evaluation post separation which is significantly worse than either the VA or MEB exam before
separation. There are no other ROM data in the file within the 12‐month window specified in DoDI
6040.44 for Board consideration. The Board considered VASRD §4.7 (higher of two evaluations)
during its deliberation which directs the evaluator to assign the higher of two valid ratings if the
disability picture more nearly approximates the criteria. The Board also considered the pain
intensity of 7 of 10 (moderately severe) documented in both exams, the reliance on chronic
medication to function and the multiple clinical pathologies that could contribute to the pain
impairment and agreed the low back condition more reasonably reflects a 20% disability at the time
of separation. The Board considered the 5243 code under the formula for rating intervertebral disc
syndrome based on incapacitating episodes and agreed the evidence did not support bed rest
prescribed by a physician and treatment by a physician required under this formula for a higher
rating. There is no evidence of ratable peripheral nerve impairment which would provide for
additional or higher rating. 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 low 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 low back condition, the Board unanimously recommends a disability rating of
20%, coded 5241‐5243 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 his prior medical separation:
3 PD1200351
VASRD CODE RATING
5241‐5243
COMBINED
20%
20%
Chronic Back Pain S/P L5‐S1 Fusion
UNFITTING CONDITION
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120409, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20120022695 (PD201200351)
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
XXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
4 PD1200351
CF:
( ) DoD PDBR
( ) DVA
5 PD1200351
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