RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200136 SEPARATION DATE: 20061117

BOARD DATE: 20120816

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SSG/E-6 (19D30/Cavalry Scout), medically separated for a low back condition. The condition began in 2002 as a result of injury and was not associated with a surgical indication. The CI did not improve adequately with treatment 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 MEB forwarded lower back pain with grade I spondylolisthesis (slippage) of L5 on S1 to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB adjudicated the spondylolisthesis condition as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION: The CI elaborated no specific contention in his 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 the Correction of Military Records (BCMR).

RATING COMPARISON:

*VA rated 20% (combined 30%) after first period of service ended 20030104. Ratings discontinued 20050605 when CI activated. Same ratings resumed after second separation. Spine to 100% 2 Feb 2011 – 1 Apr 2011 for surgery/convalescence; then 20%

ANALYSIS SUMMARY:

Low Back Condition. The CI’s low back pain (LBP) condition began during his first active duty tour after awkwardly jumping out of a helicopter in 2002, at which time a diagnosis of spondylolisthesis was made. The VA subsequently assigned a 20% rating, which was discontinued upon his return to active duty in 2005. While deployed in 2006 his back pain worsened. The pain was exacerbated with running and wearing a ruck sack, was occasionally associated with radiation of pain to both legs and feet and kept him awake at night. The narrative summary (NARSUM) examination performed on 4 October 2006, a month prior to separation, documented “full active range of motion” but did not provide goniometric measurements. Tenderness of the lumbar spine was present, but spasm and contour were not mentioned. The CI was “able to toe and heel walk” but gait was not specifically described. Strength and deep tendon reflexes were normal, and straight leg raise testing (SLR) was negative. X-rays showed a grade I spondylolisthesis at L5-S1, while magnetic resonance imaging (MRI) showed minimal intervertebral disc space narrowing at L4 through S1, and an annular tear at L5-S1 but without disc protrusion or nerve root compromise. At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported a constant dull ache in the back but denied sciatica. Sometimes his right leg would feel weaker. Prolonged standing or sitting could bother him, and sleep was sometimes disturbed due to pain. Flare-ups of pain occurred once daily to three times per week and lasted for hours. The CI reported that the low back condition had no significant effects on his usual occupation, he had lost no time from work during the preceding 12 months and he exercised on an elliptical for an hour, three times weekly. Examination revealed a normal gait and normal spinal contour, although muscle spasm and tenderness were present. SLR testing and lower extremity neurologic testing was normal. The CI was observed to dress and undress normally and appeared comfortable without wincing. Range-of-motion (ROM) measurements showed flexion of 0-80⁰ (normal to 90⁰), extension 0-25⁰ (normal to 30⁰) with pain during the last 5⁰, and 30⁰ of lateral flexion and rotation bilaterally (normal for each to 30⁰); combined ROM was 225 (normal 240). The examiner stated that Deluca criteria were absent.

The Board directs attention to its rating recommendation based on the above evidence. The PEB recognized the low back condition existed-prior-to-service (EPTS), and deducted 0% for previous disability. According to §4.22, the rating should reflect only the degree of disability over and above the degree existing at the time of entrance into the service. The Board concluded that the PEB’s 0% deduction was appropriate. The PEB and VA chose different coding options for the condition, but this did not bear on rating. The PEB’s 10% rating was based on the examination finding of tenderness, although other rating criteria possibly supporting a higher rating was not included in the NARSUM exam, and therefore not considered by the PEB. However, the other VASRD requirements were addressed by the VA examiner. The specific ROM values supported a 10% rating, while the absence of spasm or tenderness severe enough to result in abnormal gait or abnormal spinal contour also justified a 10% rating. The VA determined that 10% was appropriate under the new spine rules, but kept the rating at 20% under the original rating IAW the old spine rules, in favor of the CI. The Board also considered whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. However, not even the minimum rating under that formula was met.

The Board finally considered if additional disability was justified for the pain that radiated to the lower extremities and the complaint of occasional right leg weakness. However, the evidence in this case does not support the presence of functional impairment attributable to peripheral neuropathy. The Board therefore concludes that additional disability rating was not justified on this basis. 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 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 spondylolisthesis 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 recharacterization of the CI’s disability and separation determination, as follows:

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

XXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20120015303 (PD201200136)

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 XXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA