RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01209
BRANCH OF SERVICE:  Army	BOARD DATE:  20150205
Separation Date:  20040403

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (45G/Fire Control Systems Repairer) 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 P3/L3/U3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “mid-thoracic back pain” 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, without significant neurologic abnormality,” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “In 2004 we were the first crew to start getting medically boarded out after the Mar 2003 Iraq invasion and we weren’t helped as the soldiers our now.  I did not say much about my PTSD due to fear of what jobs I would miss out of after leaving the Army.  I’m 80% disabled in the VA.  When we were (released) medically boarded out we did not even know too much about the VA and were scared to say anything about all of our issues due to fearing not being able to get a job afterwards.  I was medically boarded out of the Army at this time.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

The additional documents submitted by the CI did not have any bearing on the outcome of this case.  The evidence is for a contended condition (PTSD) which was not implicated by the PEB or MEB and therefore not in scope.  The applicant applied on a DD Fm 249 not a DD Fm 149 (for MH review) and will have to apply directly to the BCMR as stated below in the Scope section above, to have this condition considered as an “unfitting” condition.

RATING COMPARISON:

Service IPEB – Dated 20040116	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, without Significant Neurologic Abnormality	5299-5237	20%	Thoracic Spondylosis to include Dextroscoliosis	5242	40%	20040810	
Other x 0 (Not In Scope)	Other x 2 		
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20041028 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic Back Pain, without Significant Neurologic Abnormality Condition.  The CI developed lower thoracic spine pain in late 1999 without an identifiable injury.  Initially, the pain waxed and waned with short periods of being pain free.  During an exacerbation, the CI would present to sick call and be given a profile, placed on a non-steroidal anti-inflammatory drug with occasional prescriptions with anti-spasmodics.  A bone scan of the mid to lower thoracic back was normal.  The thoracic spine magnetic resonance imaging (MRI) showed minor degenerative changes at T7-8, T10-11 and T11/12.  The CI continued with chronic thoracic spine pain and was followed by Primary Care.  The Primary Care provider documented spasm in the mid back with physical exam findings of an antalgic gait and right sided paraspinal muscle spasms.  A repeat thoracic spine MRI documented a slight left lateral bulging compressing the thecal sac.  Yet another thoracic spine MRI done for chronic T7-8 pain, demonstrated mild disc narrowing.  The MEB narrative summary exam accomplished approximately 5 months prior to separation documented mid thoracic spine pain that was exacerbated by deployment to Iraq.  The CI reported that while deployed, he had weakness in both legs; however, these symptoms resolved spontaneously.  The VA Compensation and Pension (C&P) exam approximately 4 months after separation documented constant aching, crushing, sharp pain located in the middle of his back down to the toes.  The CI lost approximately 5 months from work.  The thoracic spine X-ray showed mild dextroscoliosis and minimal diffuse thoracic spondylosis.  The VA C&P physical exam findings are summarized in the chart below.

To support a recommendation for an additional peripheral nerve rating at separation, Board precedent requires a functional impairment be tied to fitness.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no functional implications.  The motor impairment was relatively minor and could not be linked to significant physical impairment.  The CI had leg weakness while deployed, however these symptoms were no longer present at the time of the MEB exam.  Since no evidence of functional impairment existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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.

Thoracolumbar ROM
 (Degrees)	PT ~4 Mos. Pre-Sep	VA C&P ~4 Mos. Post-Sep	
Flexion (90 Normal)	50	30	
Combined (240)	-	105	
Comment	The PEB used the passive ROM of 55 degrees documented on this exam for rating	Antalgic gait; Pos. painful motion & Deluca criteria; Pos. SLR bilaterally; Normal strength, sensation & reflexes	
§4.71a Rating	20% (PEB 20%)	40% (VA 40%)	
The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic back pain 5299 analogous to 5237, (without significant neurologic abnormality condition) and rated the condition at 20%.  The VA coded the thoracic spondylosis to include dextroscoliosis condition as 5242 (Degenerative arthritis of the spine) and rated at 40%.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s condition “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.” The Board considered the probative value of each exam on which to base its rating recommendation.  The MEB examiner referenced the use of formal goniometric PT ROMs which documented active flexion of 50 degrees at 4 months prior to separation.  The VA exam ROM’s were accomplished 4 months after separation and noted forward flexion of 30 degrees.  The PT exam met the 20% rating criteria “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  Additionally, there was no clear-cut evidence of injury (VASRD §4.41, History of Injury) or significant pathologic findings that would logically explain a 40% disability rating at the time of separation.  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, without significant neurologic abnormality 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, without significant neurologic abnormality 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130907, 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 XXXXXXXXXXXXXXX, AR20150009881 (PD201301209)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA