RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01736
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050913

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Cannon Crewmember, medically separated for chronic back pain secondary to thoracic kyphosis.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “T3 & T4 compression fractures with local 25 degrees kyphosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic back pain secondary to thoracic kyphosis” 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:  His condition continues to worsen and he was not evaluated for his feet and knees.  His complete submission is at Exhibit A.

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 20050629	VA* - (No Original VARD available)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Status Post Compression Fracture of the T3 and T4 with Residuals of the Cervical Spine	5299-5237	10%**	N/A	
Other MEB/PEB Conditions x 0	Other x 5	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20130727 with effective date:  20050914

ANALYSIS SUMMARY:  The Board makes note that there are no VA Compensation and Pension exams available in the evidence before it; the original VA Rating Decision (VARD) is also not in record; and, these documents could not be located after the appropriate inquiries.  A further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations in this case.

Chronic Back Pain Condition.  The narrative summary noted that the CI fractured two upper thoracic vertebrae (T3, T4) in a motor vehicle accident in September 2001.  He recovered from that injury and returned to full duty without problems.  He re-injured the same area of the thoracolumbar (TL) spine during a rough parachute jump landing in August 2004.  Computed tomography imaging of the thoracic spine (T-spine) on 15 September 2004 showed an acute compression fracture (fx) of the T4 vertebra, with acute angulation resulting in a local kyphotic (bowing forward) deformity of the T-spine that caused narrowing of the area through which the spinal nerves travel (neuroforamen) bilaterally, and mild central spinal canal stenosis.  Despite conservative treatment with profiles, medications, and physical therapy, the CI failed to improve.  An orthopedic evaluation indicated surgery was not an option and the CI was unfit to perform any functional duties and an MEB was initiated.

At the MEB exam 14 March 2005, 6 months before separation, the CI reported chronic back pain.  The MEB physical exam noted prominent kyphosis of the T-spine localized to the area of the injury.  There was no tenderness, swelling, or muscle spasm present.  Physical therapy measured TL ROM 21 April 2005 was flexion 80, 80, and 81 degrees (normal 90) and combined ROM (with three repetitions) of 210 degrees (normal 240).  Notes by the therapist that were difficult to read indicated an assessment of isolated thoracic motion and the therapist noted “rigid T-spine”

As noted above, the initial VA Compensation and Pension (C&P) exam and original VA Rating Decisions are not in record.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbosacral or cervical strain).  The VARD dated 27 July 2013 noted that a 10% rating for the back condition, effective since the day after the date of separation, was continued.  The Board agreed that the evidence in record supports a 10% rating according to the VASRD General Rating Formula for the Spine in effect on the date of separation for TL flexion “greater than 60 degrees and not greater than 85 degrees” or combined TL ROM “greater than 120 degrees but not greater than 235 degrees”.  The Board reviewed to see if the next higher evaluation was supported, but there was no evidence of limitation of TL ROM sufficient to satisfy the 20% rating criteria and there was no “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal curvature.”  The CI’s abnormal thoracic spinal curvature was a fixed deformity due to his compression fracture and no muscle spasm or guarding of the spine was noted at the MEB exam.  Also, although PT noted that the T-spine was “rigid” and there may have been local ankylosis in the area of the injury, there was no evidence of ankylosis of the “entire thoracolumbar spine” to support a higher rating.  The Board reviewed to see if a higher evaluation than 10% was achieved coding with 5243 (Intervertebral disc syndrome) and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  However, there was no documentation in record of incapacitating episodes as defined of “total duration of at least one week during the past 12 months.”  The Board noted that there was no evidence in record of functional implications associated with peripheral nerve impairment or other neurologic impairment due to the TL back condition to recommend additional rating on this basis.  The Board thus determined that the evidence supports a 10% rating for the TL back condition and no higher.  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 TL back 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 back 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 20131021, 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 XXXXXXXXXXXXXXXXXXXX, AR20160000837 (PD201301736)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA