RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD1300618	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20140410
SEPARATION DATE:  20070211		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91H/Optical Lab Specialist) medically separated for a chronic back pain condition.  The CI initially sought treatment in January 2003 for low back and left leg pain.  The back condition was aggravated when she slipped and fell on ice at the end of 2003.  Her symptoms failed to respond to conservative measures and surgery was performed in April and June 2005.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “nonradicular pain involving the cervical, thoracic, lumbosacral or coccygeal spine, idiopathic or secondary to degenerative disc or joint disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions for PEB adjudication.  The PEB adjudicated “chronic thoracolumbar spinal pain secondary to lumbar degenerative disc disease and degenerative arthritis” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD). The four other conditions were determined to meet retention standards, and therefore not ratable. The CI made no appeals and was medically separated.  

CI CONTENTION:  “My condition was and still is worst [sic] than the rating I got”

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; 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.  

RATING COMPARISON:  
   
Service IPEB – Dated 20061226	VA - (6 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Pain, Secondary to Lumbar Degenerative Disc Disease (DDD)	5299-5243	10%	Degenerative Joint Disease (DJD), Thoracolumbar Spine	5003-5237	40%	20070913	
No Additional MEB/PEB Entries	Other x 8	20070417	
Combined:  10%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20070913 (ROM) and 20070417.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service 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 Veteran Affairs, operating under a different set of laws.

The Board acknowledges the sentiment expressed in the CI’s application, i.e., that the gravity of her condition merits consideration for a higher disability rating.  The Board utilizes VA 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 6044.40; 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.  

Thoracolumbar Back Condition.  The CI initially had non-traumatic mid to low back pain (LBP) in 2002 which was aggravated with a fall on her tailbone in January 2003.  Prior to her injury, it was determined that a component of her back symptoms were due to large breasts; evidenced by dark, indented bra straps and radiographic evidence of reverse spinal curves.  Breast reduction surgery performed in December 2004 mildly improved her upper and mid back pain symptoms.  Her LBP continued and worsened over time.  Additionally, she described pain, tingling, and numbness extending down both legs (left > right) in a non-specific manner in association with her back symptoms.  In August 2004, radiologic tests indicated L4-L5 degenerative disc changes with disc protrusion at L5-S1 with facet hypertrophy (enlarged boney growth).  She had extensive physical therapy (PT), chiropractic manipulation; X-ray guided joint injections, local injections, nerve root blocks, epidurals, spinal narcotics, electro-stimulation, radiofrequency denervation, facet injections, traction, and relaxation therapy, all without symptom relief.  Within a 3-month period she underwent two low back surgeries; L4-L5 discectomy in April 2005 and an L5-S1 decompression laminectomy in June 2005.  Post-operatively her pain was not relieved, but the record indicated periods of improvement.  On 9 August 2005 the CI endorsed “LBP below the beltline radiating to left hip down the extremity to bottom of foot with numbness, tingling and weakness noted.”  Her physical examination documented thoracolumbar spine with full ROM without painful palpation or motion.  Additionally, there was no sensory/motor abnormalities, “no peripheral neuropathy was noted,” and lower extremity radicular tests were normal.  Three days later on 12 August 2005, she endorsed “worsening left lower extremity pain” and further described that “simple air, wind and sheets, lying still and when she turns produces severe pain, numbness and tingling.  She equated her pain as 80% to her left leg and 20% to her back.  A service treatment record (STR) note dated 7 September 2005, 2 months post second surgery, she reported 50/50 percent split painful symptoms between her low back and left leg.  She reported, “pain is no better than pre-operation.”  She continued various invasive procedures in an attempt to control her pain throughout 2006.  A pain management entry dated 10 and 23 October 2003, noted, “…she continues to have no real leg pain” and “her pain is not leg; mostly back.”    

At the narrative summary (NARSUM) performed on 13 November 2006, 3 months prior to separation, the CI endorsed “chronic mid and low back pain.”  Her physical examination revealed tenderness along her low back, positive left straight leg raise, subjective numbness in all left toes and two positive Waddell signs (pain indicator tests).  Her diagnosis was non-radicular pain essentially of the entire spine; “that failed to respond to adequate conservative treatment.”  The examiner detailed her stated functional status with many examples and listed her prognosis as “stable”.  

At the VA Compensation and Pension (C&P) examination performed 17 April 2007, 2 months post-separation, the CI denied any painful flare-ups in regard to muscle, joint or spinal disease.  Although endorsing back pain, stiffness, limitation of motion, painful radiation with leg pain, weakness, paresthesia, and numbness; she responded “no” to a history of paresthesia.  She did not require assistive devices for walking and she responded “no” to having any functional limitations on walking.  The physical examination revealed her walking upright with a steady and normal gait.  There was no atrophy, spasm or other muscle abnormalities in her lower extremities; nor guarding, spasm, or tenderness within the spinal musculature.  Her sensory, motor and spinal reflex examination was normal.  There was a positive straight leg raise, without directional identification.  Her diagnosis was X-ray based as thoracolumbar DDD and ‘minor’ DJD of the lower thoracic spine.  There was no specific or single functional assessment recorded other than a listing of activities of daily living (ADLs).  In regards to her back condition, all ADLs were impacted to a negative degree of either ‘prevents’ the activity or ‘severely’ impairs performance of the activity, to include ‘feeding’ with severe impairment and ‘shopping’ as ‘prevents’ performance.         

At the second VA C&P examination performed on 13 September 2007, 7 months after separation, the CI reported daily severe LBP associated with spasm, weakness, stiffness, and limited motion with weekly flare-ups lasting 1-2 days, precipitated by movement associated with a sharp, lancing pain into her left leg.  Her limitation on walking was assessed as, “unable to walk more than a few yards.”  She uses two canes for assistance.  The examination demonstrated an antalgic gait.  Her mid and lower spine revealed spasm with painful motion as well as guarding and tenderness, but not to the degree to cause abnormal spinal contour or altered gait.  Spinal ROM was significantly limited.  Muscle strength testing was normal.  There was sensory impairment in the right lower extremity listed as the L5 dermatome distribution.  Her diagnosis was unchanged.  Likened to the general C&P examination, the ADLs were related as to her functional assessment.  All ADLs were impacted to some negative degree to include ‘feeding’ with mild impairment and ‘shopping’ with moderate impairment.  In regards to incapacitating episodes during the past 12 months, the CI indicated that her thoracolumbar spine condition had incapacitated her for “almost continual for the 12 months.”  There was no further elaboration on specific episodes.  The goniometric range-of-motion (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.
 
DOS 20070211
Thoracolumbar ROM
(Degrees)	PT ~10 Mo. Pre-Sep
(20060928)	MEB ~ 8 Mo. Pre-Sep
(20061113)	VA C&P (Gen) ~2 Mo. Post -Sep
(20070417)	VA C&P (spine) ~6 Mo. Post -Sep
(20070913) 	
Flexion (90 Normal)	35 38 27/(35)	Limited w/pain	no ROMs	25 [15]*	
Extension (30)	25 15 15/(20)	Limited w/pain		12 [1]	
R Lat Flexion (30)	30 26 24/(30)	Limited 		10 	
L Lat Flexion (30)	20 24 20/(20) 	limited		10 	
R Rotation (30)	30 191 9/(25)	limited		20	
L Rotation (30)	32 30 30/(30)	limited		20 	
Combined (240)	160	-		97	
Comment	no assistive device	+ Waddell X2
painful motion	normal gait
no assistive device; 
no walking limitations; 	painful motion
 assist device X2
walk = few yards	
§4.71a Rating	20%	10%	NR	40%	
	[ ] = onset of pain

The Board directs attention to its rating recommendation based on the above evidence.  Although the Service and VA titled the unfitting back condition slightly differently, they both utilized (in various combinations) similar codes of 5243 (intervertebral disc syndrome) and 5237 (lumbosacral strain) respectively; both citing painful motion and additional limited motion by the VA.  Board members agreed that sufficient evidence of painful motion was present to justify the Service rating of 10% IAW VASRD §4.59, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.71a.  Board members considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition.  The Board also discussed the VA’s documented comment from the CI in regards to incapacitating episodes and agreed that there were no defined parameters set around her statement and therefore, the Board was left to determine if any physical activity could be accomplished by the CI, to include walking, standing, sitting…etc.  Evidence reviewed did not reveal such limitations.  Additionally, having no physician prescribed bed rest, the Board acknowledged that a higher rating based upon incapacitating episodes was not met in this case.  The MEB examination simply summarized the CI’s ROM as painfully limited and therefore, definitely supported by §4.59 at 10%.  It also provided information on two Waddell signs being positive; pain on stimulated rotation and increased pain on axial load.  The positive Waddell signs are indicators of non-organic causes of pain; however, literature indicates that there is no significant difference in disability pictures regardless of the absence or presence of Waddell signs.  Therefore, the MEB examination was of little probative value in this case.  Board members then considered the probative value between the pre-separation PT examination and the post-service VA examinations.  The ROM values reported by the VA examiner (six months after separation) are significantly worse than those reported by the PT examiner (ten months before separation).  There is no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  There was also a significant disparity in the non-ROM findings between the two post-Service VA examinations in regards to gait, assistive devices and walking limitations without interim injury or altered condition.  Member’s consensus was that in light of their temporal proximity, full weight could not be given to the subjective elements (severity of symptoms, etc.) of the VA’s final evaluation in the context of the contradictory history and objective evidence; nor could any medical opinions premised on the conflicting history be weighed as heavily.  Therefore, based on all evidence and associated conclusions just elaborated, members agreed that preponderant probative value should be assigned to the 10-month pre-separation PT evaluation.  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.  

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 thoracolumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5243 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 her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Thoracolumbar Spine Condition	5299-5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130524, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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, AR20140013382 (PD201300618)

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