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AF | PDBR | CY2013 | PD-2013-02346
Original file (PD-2013-02346.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02346
BRANCH OF SERVICE: Army  BOARD DATE: 20140829
SEPARATION DATE: 20050131


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13B/Cannon Crewmember) medically separated for a back condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). “Chronic back pain status post (s/p) L5-S1 fusion without neurologic abnormality” 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 s/p L5-S1 fusion without neurologic abnormality” as unfitting, rated at 20% citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “I have never suffered with back problems before the military since my injury I have a permanent plate in my spine and screws for the rest of my life. Because of this permanent disability I am unable to play with my kids without pain. I can’t bend, exercise some days I have to lay in the bed because of pain and I am only 31 years old. After surgery I still have pain on a scale of 1-10 it is a 10. I am unable to have intercourse with my wife because of the pain.”


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 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 Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20041210
 VA* - (<1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain s/p L5-S1 Fusion w/o Neurologic Abnormality 5241 20% Spondylolysis w/Spondylolisthesis, Left Spine s/p Fusion L5-S1 w/Residuals 5241 20% 20050118
Other x 0 (Not is Scope)
 Other x 5 (Not in Scope) 20050118
Rating: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 50212 (most proximate to date of separation)


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Chronic Back Pain s/p L5-S1 Fusion w/o Neurologic Abnormality. The service treatment record indicated the CI, a cannon crew member, had back and leg pain began in 2001; pain onset was gradual and without trauma. An magnetic resonance imaging in April 2004 showed bilateral spondylolysis (defect in the connection between vertebrae) at L5 with Grade 3 spondylolisthesis (forward displacement of a vertebra) at L5-S1 with mild degenerative disk disease at L5-S1. Lower back pain was treated with physical therapy, nonsteroidal anti-inflammatory medication, narcotics and transcutaneous electrical nerve stimulation (TENS), which all failed to relieve the CI’s pain. A laminectomy (removal of a portion of a vertebra), discectomy (removal of a disc) and posterior L5-S1 fusion were performed on 27 July 2004. Post-operative physical therapy (PT) records indicated the CI was able to walk more than two miles slowly and had flexion of 55 degrees, extension of 10 degrees, and the lumbar spine measured with a bubble goniometer on 23 October 2004. However, PT was discontinued due to lack of progress on 10 November 2004.

The narrative summary dated 28 October 2004 noted the surgery “provided excellent relief of his preoperative symptoms immediately postoperatively,” but “still restricted from wearing body armor and running and doing impact exercises.” He had no paraspinal muscle spasm or tenderness, no erythema (redness), a negative Patrick’s test (to evaluate the hip and sacroiliac joints) and a negative straight leg raise (to evaluate for nerve root irritation) bilaterally. The CI had a full range-of-motion (ROM) of the hips, full strength and reflexes of the lower extremities and no sensory deficits. Post-operative X-rays revealed excellent early healing. Spasm was absent. At the MEB examination dated 4 November 2004, the CI reported lower back surgery on 23 July 2004. The MEB physical examiner noted the CI had a 2-3 year history of lower back pain, the symptoms of which worsened while deployed to Iraq from August 2003 to February 2004, remained post-operatively and radiated to the left buttock and leg with infrequent numbness requiring narcotic and nonsteroidal anti-inflammatory medication. ROM measurements are in the chart below.

The commander’s statement dated 15 November 2004 indicated the CI made little contribution to the unit due to his profiles and convalescent leave. The profile limitations were “no way commensurate with [his] duties” where he had to “handle ammunition weighing up to 103 pounds at a firing rate of one round per minute.” A permanent L3 profile for s/p lumbar spine surgery (spondylolisthesis) was issued on 18 November 2004 and restricted the CI from all military functional activities and physical fitness testing. Specifically, it precluded the use of a rucksack, flak vest, load bearing equipment or Kevlar as well as using military vehicles or handling firearms if taking narcotics for pain relief. It noted the CI “may be unable to stand or sit for more than 15 minutes at a time” and restricted him from sit-ups, running, stooping, bending or squatting, but permitted going to the gym for PT (physical training) with the lifting or carrying maximum weight of 10 pounds.

At the VA Compensation and Pension examination dated 18 January 2005 (performed 2 weeks prior to separation), the CI reported his back pain was above the belt line and radiated to the left leg on a daily basis. The pain was described as aching. Stiffness with sharp pain occurred with movement and had an intensity of 7/10 (10 being the worst pain). The CI indicated he was on 90-day convalescent leave post-surgery in July 2004 and had been on light duty thereafter. The ROM is below. Neurological examination of the lower extremities revealed that the motor, sensory and deep tendon reflex examinations were intact and Lasegue’s sign (to assess the sciatic nerve, lower lumbar and upper sacral nerve roots for irritation) was negative. Posture, gait, and spinal contour were normal. Painful motion was present, but spasm absent. No incapacitating episodes were reported.

The 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 ~3 Mo. Pre-Sep PT ~2 Mo. Pre-Sep VA C&P ~2 Wks Pre-Sep
Flexion (90 Normal) 80 50 70
Combined (240) - - 175 215
Comment Bilateral reflexes: 1/4 patella, 2/4 ankle Low back pain 7/10-sharp Normal posture and gait; painful motion noted; no spasm;
§4.71a Rating 0% 1 0% 1 0 %

The Board directed attention to its rating recommendation based on the above evidence. The Informal PEB and VA both assigned a rating of 20% using the code 5241 (spinal fusion). While the CI had 30 days of convalescent leave, no incapacitating episodes were reported. Therefore, use of code 5243 (intervertebral disc syndrome) is not applicable. The Board noted that the MEB and VA ROM correspond to a 10% rating. Absent spasm, an abnormal gait or contour and without incapacitation, the 20% rating both the PEB and VA is not supported. However, the Board does not recommend a rating lower than that adjudicated by the PEB. 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 chronic back pain s/p L5-S1 fusion 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 chronic back pain s/p L5-S1 fusion 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 20131112, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXX
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 XXXXXXXXXXXXXX , AR201500070 76 (PD201 3 0 2346 )

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

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