RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01679
BRANCH OF SERVICE:  Army	BOARD DATE: 20150310
SEPARATION DATE:  20040412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Fire Support Specialist) medically separated for chronic lower back pain, status post compression fractures.  The back 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).  “T5-T6 and T11 compression fracture with T8 vertebral body fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the chronic lower back pain, status post compression fractures…without neurologic abnormalities as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “R--- W--- sustained a back injury and TBI during his service in Iraq.  He also has been diagnosed with PTSD as a result of his service in Iraq. R--- fell 27 feet down a utility shaft while in Iraq, as a result of the fall he broke his back in 6 places, cracked his skull.  Today, 10 years post-injury, R--- still has excruciating pain on a daily basis; he experiences dizziness and balance issues as well, those balance issues cause him to fall 3 to 4 times a month.  He has memory issues as well as light and sound sensitivities as a result of the TBI that resulted from  R---- fall and cracking his skull. R--- has also been diagnosed with PTSD as a result of his service in Iraq. R--- requires the full-time care of his wife, M--- C--- W---, through the VA Caregiver program. R--- current VA disability rating is 90% and he is on IU at this time.  R--- ratings should be changed because they did not reflect the seriousness of his injuries at the time of his separation and now, 10 years later, R--- Army ratings still do not reflect the seriousness of his disabilities at the present 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.

RATING COMPARISON:

 IPEB – Dated 20040129	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post Compression Fractures…	5235	10%	Fracture of the Thoracic Spine	5299-5235	10%	STR	
Other x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20040420 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Pain, Status Post Compression Fractures Condition.  The STR noted that the CI injured his back falling down a utility shaft in April 2003.  X-rays showed fractures of 6 vertebrae (compression fractures of T5 and T6 (approximately 25%) and T11 (superior aspect); transverse fractures through the spinous processes of T3 and T4; and transverse fracture of the anterior superior aspect of the T8 vertebral body).  There were no displaced fragments and no impingement on any neural structures.  The condition was determined to be stable and he was treated with bracing for 7 months, and then physical therapy (PT).  Initially he reported good relief but developed increased pain as he increased his activity.  Non-steroidal anti-inflammatory medication did not relieve his symptoms and he was unable to perform the duties of his MOS.  At a PT examination on 8 July 2003 the CI could flex his back almost touching his toes.  At a PT appointment on 29 October 2003, the CI reported he had been doing well and had not been in for PT since August.  The CI noted that his “sciatica has decreased” and that he had some pain when sleeping in an odd position.  On examination, the CI’s posture was normal (erect).  On range-of-motion (ROM) examination, he demonstrated full flexion but reported slight thoracic pain when standing back up.  There was tenderness of the thoracic spine area.  At the MEB examination on 2 December 2003 (recorded on DD Form 2808), there was marked tenderness over several thoracic vertebrae, but no further exam (with no mention of thoracolumbar ROM).  The examiner stated that the residua of the vertebral fractures severely limited the CI from full function for more than brief periods of time.  At the MEB narrative summary (NARSUM) examination on 12 December 2003, performed by an orthopedic surgeon, 4 months prior to separation, the CI had tenderness over the mid-back area with some muscle spasm, forward flexion of 90 degrees (normal) and extension of 20 degrees (normal 30), without other ROM measurements.  The CI had normal gait and there was normal strength, reflexes, and sensation of the lower extremities.  The ROM examination by PT on 5 January 2004 (3 months prior to separation), indicated measurement of the thoracic spine ROM and not thoracolumbar ROM.  Flexion and extension of the thoracic spine was performed using an inclinometer recording flexion of 38 degrees (normal approximately 45 degrees for isolated thoracic spine motion) and extension of 16 degrees.  Side bending and rotation were measured using a goniometer and recorded left side bending of 28 degrees and right side bending of 31 degrees.  Rotation to the left was 42 degrees, and to the right was 35 degrees.  At a chiropractic examination on 21 February 2005, 10 months after separation, the CI complained of constant dull, stabbing, lumbar pain bilaterally, rated at 5/10.  Lumbosacral ROM measurements were not done IAW VASRD standards (were not of the thoracolumbar spine) but were reviewed for comparison purposes:  flexion 55 degrees (normal for lumbar spine 60), extension 25 degrees (normal 25), left and right lateral flexion both 25 degrees (normal 25), and left and right rotation both 30 degrees (normal 30).  All measurements except the rotation were associated with painful movement.  At the VA Compensation and Pension (C&P) spine exam on 30 September 2005, 17 months after separation, the CI reported that he had constant back pain that flared monthly (up to 10/10), that he had occasional numbness in the anterior thighs, that he was not working secondary to the back pain, and that he did not use a back brace or cane.  On examination he had tenderness over the vertebrae in the thoracic (mid-back) spine but no spasm was reported.  “Lumbar spine” forward flexion was 45 degrees, extension 25 degrees, lateral flexion 30 degrees to both sides and 35 degrees of rotation to both sides.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the condition with code 5235 (Vertebral fracture or dislocation) at 10%, noting that forward thoracolumbar flexion was 90 degrees with localized tenderness.  The VA initially rated the back condition 10% (coded 5235) based on STRs citing the limited extension and the muscle tenderness with spasm.  The VA subsequently increased the rating for the back condition to 20% based on the VA C&P performed examination on 29 September 2005, 17 months after separation.  In assigning probative value to these somewhat conflicting examinations, the Board noted that the VA C&P exam on 29 September 2005 was 17 months after the DOS.  DoDI 6040.44 provides for consideration of post-separation VA findings, particularly within 12 months of separation, although the Board’s recommendation is premised on the degree of disability at separation.  This examination’s probative value was judged to be compromised by its remoteness after the DOS (17 months), which would reflect after separation worsening.  Only VA evidence which can be reasonably interpreted to reflect disability at separation is probative to the Board’s recommendations.  The Board noted that the physical therapy exam 5 months prior to separation and the orthopedic surgery MEB NARSUM examination both documented normal thoracolumbar flexion.  The PT examination 3 months prior to separation recorded thoracic spine flexion and extension using an inclinometer and is not comparable to the thoracolumbar ROM specified for rating in the VASRD.  The Board also considered the ROM examination at the chiropractic exam done 10 months after separation; although these measurements were not done IAW VA standards, they did demonstrate a near-normal forward flexion of the lumbar spine (55 degrees vs. normal 60 degrees).  These measurements were consistent with the ROMs from the NARSUM exam.  Review of the STR did not detail any further injury or worsening of the condition after the NARSUM exam and prior to separation; and the NARSUM measurements were consistent with aspects of other physical exams proximate to separation (i.e., observations of normal gait, normal spinal curvature, and near-normal lateral flexion and trunk rotation).  Therefore, based on all evidence and associated conclusions just elaborated, Board consensus was that the CI’s condition at the time of separation was best reflected by the NARSUM examination.  This supported a 10% rating based on forward flexion.  There was not a pathway to a higher rating based on combined ROM, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring bed rest prescribed by a physician.  The Board additionally considered if reports of neurological symptoms in the lower extremities (sciatica, occasional numbness in the anterior thighs) warranted an additional disability rating; but Board members agreed that the requisite link of these symptoms with functional impairment was not in evidence.  Pain whether it radiates or not is subsumed under the general spine rating as specified in §4.71a.  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 low back pain 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.  In the matter of the chronic back pain 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 20131016, 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, AR20150011081 (PD201301679)

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:

						         
CF: 
(  ) DoD PDBR
(  ) DVA