RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300196
BRANCH OF SERVICE:  Army	BOARD DATE:  20130619
SEPARATION DATE:  20070910

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63J/Chemical Equipment Repairer) medically separated for a thoracolumbar spine condition.  He had a preceding history of back pain, which was exacerbated during a 2007 deployment to Iraq and required medical evacuation.  He was subsequently diagnosed with degenerative disc disease (DDD), was not a surgical candidate, and failed conservative treatment.  He could not meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards; he was issued a permanent profile; and, was referred for a Medical Evaluation Board (MEB).  Lumbar DDD, along with scoliosis (judged to meet retention standards), was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic low back pain complicated by thoracic scoliosis” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I have degenerative disk disease which made me unable to continue service.  I live in pain on a daily basis and as my spine will only get worse, I will live with this for the rest of my life.”

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 spine 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 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.

RATING COMPARISON:

Service IPEB – Dated 20070817	VA (6 Wks. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Back Pain/Scoliosis	5237	10%	DDD, Lumbar Spine	5237	10%	20071029	
No Additional MEB/PEB Entries	Other x 4	20071029	
Rating:  10%	Combined Rating:  40%	
Derived from VA Rating Decision (VARD) dated 20080229 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:

Thoracolumbar Spine Condition.  Prior to his Army enlistment the CI had completed an enlistment in the Marine Corps, and records from the previous service are not in evidence.  At his enlistment physical for the Army, he was orthopedically cleared for congenital scoliosis.  His first complaint of back pain in the (Army) Service treatment records (STRs) was 2 months after enlistment.  There are fairly frequent clinical entries for back pain after that, most commonly associated with physical fitness exercises.  The absence of radicular symptoms and normal neurological findings was documented.  There is a stateside physical therapy (PT) note for back class in October 2006, and 4 months later there is a medical evacuation note from Iraq with no intervening entries.  An orthopedic note after redeployment cited a neurosurgical recommendation for MEB referral, and imaging revealed degenerative disc disease at L3/4 and L4/5.  A MEB range-of-motion (ROM) evaluation from PT in April 2007 (4 months prior to separation) documented a normal gait and the absence of spasm.  The ROM measurements listed average flexion of 55 degrees (normal 90 degrees) and combined ROM of 170 degrees (normal 240 degrees).  The MEB physical exam (4 months prior to separation) documents “very limited ROM in all planes.”  The narrative summary noted a complaint of “low back pain for many years,” pain rated “mild-to-moderate and intermittent-to-frequent,” and inability to complete assigned tasks.  The physical exam did not record spine findings, but detailed normal neurological findings.  At the VA Compensation and Pension (C&P) exam 6 weeks after separation, the CI’s pain was rated 5 out of 10 and limitations were not elaborated.  There were no radicular complaints.  Two incapacitating episodes were related, for which there is no STR confirmation.  The VA physical exam noted “normal posture and gait and normal curvature of the spine,” although there was a subsequent comment on scoliosis; and “no objective evidence of spasms, weakness or tenderness.”  The VA ROM measurements were flexion to 80 degrees and a combined ROM of 230 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was supported by the USAPDA pain policy, but was not consistent with the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a criteria for the ROMs under consideration.  The MEB’s ROM evidence (flexion 55 degrees) supports a 20% rating IAW §4.71a.  The VA’s 10% rating accurately reflects the C&P ROM evidence.  The anatomic scoliosis does not satisfy the §4.71a link to severe spasm for a 20% rating based on abnormal curvature; nor is it subject to rating, as a congenital condition without permanent aggravation.  The members deliberated whether the Service or VA ROM evidence should carry the predominant probative value as a basis for the Board’s recommendation.  The only corroborative evidence from the STR is the MEB physical exam comment, which lends credibility to the MEB’s ROM measurements performed in close proximity.  Although the VA evidence was temporally closer to separation, members agreed that the corroborated MEB flexion of 55 degrees was appropriately conceded as a basis for the Board’s recommendation.  There was no evidence of ratable peripheral nerve impairment which would provide for additional 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 thoracolumbar spine condition.  The action officer recommended, and members concurred with, the code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the thoracolumbar spine condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the thoracolumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 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:
 
UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Thoracolumbar Spine	5242	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130015275 (PD201300196)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA