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AF | PDBR | CY2013 | PD2013 02511
Original file (PD2013 02511.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302511
BRANCH OF SERVICE: Army  BOARD DATE: 20140822
SEPARATION DATE: 20090825


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (68W/Health Care Specialist) medically separated for spinal fusion. The condition could not be adequately rehabilitated 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 spinal fusion condition, characterized as “lumbar degenerative disk disease, post L5-S1 fusion, post foraminotomy decompression and cyst evacuation and removal,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions. The Informal PEB adjudicated “spinal fusion” as unfitting, rated 10%, referencing the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “I feel that I was inadequately examined/treated/compensated for associated issues addressed in the PEB/MEB process. I was told that my multiple back surgeries and associated pre/post operative complications was only worth 10% in what was in fact a direct cause of the US Army.”


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 spinal fusion condition is addressed below; and, 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.

The Board acknowledges the CI’s assertions that his disability disposition was inadequate. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations. These issues may be addressed by the Board for the Correction of Military Records and/or the United States judiciary system. IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.



 RATING COMPARISON :

Service IPEB – Dated 20090504
 VA - (At Separation)
Condition
 Code Rating Condition Code Rating Exam
Spinal Fusion 5241 10% Lumbar Degenerative Disease, Status Post Fusion (claimed as lower back condition with left sciatica) 5242 20% 20090820
Radiculopathy of the Sciatic Nerve, Left Lower Extremity (also claimed as left foot condition) Associated with Lumbar Degenerative Disease, Status Post Fusion (claimed as lower back condition with left sciatica) 8520 10% 20090820
Other x 2 (Not in Scope)
 Other x 7 (Not in Scope)
Combined: 10%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 200 91223 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Spinal Fusion Condition. The CI developed chronic low back pain that was not a consequence of trauma. Due to progressive pain that radiated to his left lower extremity, he underwent surgical fusion of L5-S1 with diskectomy in March 2007. Although post-operatively the radiating pain disappeared and back pain was minor, these symptoms returned approximately 6 months later, and were not alleviated by removal of an epidural cyst in March 2008 that developed in the L5-S1 nerve root area.

At the narrative summary (NARSUM) on 3 March 2009 (5.5 months prior to separation), the CI reported that persistent low back pain prevented him from functioning as a soldier. It was noted that the CI had not used any assistive devices for ambulation. Physical examination noted a normal gait. Although the presence or absence of spasm was not specified, it was stated: “all motions generally pain free except for back hyperextension…described as mild pain.” Mild diffuse tenderness over the lumbar paraspinal muscles was present. Some reduced lumbar lordosis was observed.

An updated NARSUM history on 6 April 2009 reported a chief complaint of low back pain that was always present and exacerbated by any vigorous physical activity, prolonged sitting or standing. There were episodes of radiating pain once per month to the left lower extremity. Although he could not run or jump, walking and sedentary activities did not cause significant problems. He could bend at the waist and perform occasional heavy lifting without significantly exacerbating his pain.

At the VA Compensation and Pension (C&P) exam performed at the time of separation, the CI reported flare-ups of low back pain with lifting or repetitive motion associated with radiation to the left lower extremity. He complained of frequent spasm, but denied use of assistive devices or of incapacitating episodes during the prior year. Examination showed a normal gait and a loss of lumbar lordosis. Repetitive motion “increases spasm and pain with all degrees of extension” but range-of-motion (ROM) did not change. Spinal tenderness was not mentioned.

The goniometric 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 ~5.5 Mo s . Pre-Sep VA C&P ~ At Sep
Flexion (90 Normal)
 8 5 (84) 70
Extension (30)
 25 ( 23 ) 15
R Lat Flexion (30)
 30 30
L Lat Flexion (30)
 30 30
R Rotation (30)
 30 30
L Rotation (30)
 30 30
Combined (240)
 230 205
Comment
 +tenderness , painful motion +painful motion
§4.71a Rating
 10% 10%


The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5241 code (spinal fusion) while the VA rated the condition at 20% using the 5242 code (degenerative arthritis of the spine). Board members agreed that the limitation of motion in evidence supported a 10% rating (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees). Pathways to a higher rating were considered. The VA’s rationale for a 20% rating was the C&P examiner’s statement that muscle spasm increased during extension and that loss of lumbar lordosis was present. Board members noted however that the loss of lordosis was a permanent post-fusion state, and was not caused by muscle spasm. A 20% rating was therefore not justified on this basis. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula. 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 spinal 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 spinal 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 20131127, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                 
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140019477 (PD201302511)

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

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