RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00056	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060522		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Medical Supply Specialist) medically separated for chronic low back pain. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS). She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain with mild thoracolumbar levoscoliosis”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The informal PEB adjudicated the same as unfitting, rated 0%, citing criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  .  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant contends issues with the service PEB process.  Her 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:  

Service IPEB – Dated 20060126	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	0%	Chronic Lumbar Strain	5237	20%	20060907*	
Other x 0 (In Scope)	Other x 5	
Combined:  0%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070504 and 20070521 (most proximate to date of separation [DOS]).   *Missing C&P Used VARD 20070504 Rating Decision page.

ANALYSIS SUMMARY:  

Low Back Pain with Mild Thoracolumbar Levoscoliosis.  The service treatment record (STR) and the MEB narrative summary (NARSUM) documented low back pain (LBP) occurring after a motor vehicle accident (MVA) in December 2000 (8 months after entry) and another MVA in September 2001.  The records were silent through November 2003 (30 months pre-separation), when thoracic and lumbar radiographs were ordered that stated “LBP for 3 years…mid thoracic pain for less than 1 year.  Neurologically intact.”  They documented “minimal curvature” (scoliosis) at the T6-T7 level without evidence of fracture, dislocation, or degenerative change of the discs or the vertebral bodies.  In February 2004 (21 months pre-separation), electrophysiologic studies (nerve conduction and muscle testing) of the lower extremities documented no evidence of peripheral nerve impairment from her spinal condition.  In March 2004 (24 months pre-separation), she was found “fit for duty.”  The CI continued to have LBP and a second MEB was recommended in August 2004, but suspended due to pregnancy and inability to obtain radiographic evaluation.  Radiographic evaluations in November 2005 (6 months pre-separation) documented a “mild” and “stable” thoracolumbar scoliosis; no evidence of fracture, dislocation, spondylolysis or spondylolisthesis (vertebral degeneration or slippage); with normal disc spaces and alignment.  On the MEB DD Form 2697 Report of Medical Assessment (dated 7 November 2005), the CI reported “more back pain than before; more constant and sharp.”  On the MEB DD Form 2807-1 Report of Medical History (dated 28 November 2005), the CI reported “numbness in the legs and shins.”  The MEB DD Form 2808 Report of Medical Examination (dated 28 November 2005) documented “minimal” left curvature at the thoracolumbar area; “minimal” tenderness to palpation in the lower lumbar area; no muscle spasms; negative testing for radiculopathy; normal strength, reflexes and sensation.  There was no STR documentation of gait disturbance, muscle spasm, more significant range-of-motion limitations or ankylosis.  There was no documentation of incapacitating episodes that required physician prescribed bed rest.  

The MEB NARSUM, dated 20 November 2005 (6 months pre-separation), referenced the MEB DD Form 2808 physical exam.  The examiner further stated that the “limitations in range-of-motion were due to pain;” and opined that the “LBP was in the lower lumbar and sacroiliac joint area and likely not directly caused by her scoliosis.”  MEB directed physical therapy ranges-of-motion (dated 29 November 2005) documented active thoracolumbar forward flexion of 70 degrees (normal 90); bilateral flexion and extension of 20 degrees each (normal 30); left rotation of 25 degrees (normal 30) and right rotation of 30 degrees (normal 30); with a total combined thoracolumbar ROM of 185 degrees (normal 240).  

The VA compensation and pension (C&P) exam (performed 3 months after separation) was not in evidence, however the VA rating decision dated 4 May 2007 documented examination findings from a C&P exam dated 7 September 2006.  Thoracolumbar ROM was documented as flexion of 60 degrees, extension of 25 degrees, left and right lateral flexion of 25 degrees, and left and right rotation of 30 degrees each; with a combined ROM of 195 degrees.  Painful motion was present with no evidence of muscle spasms, ankylosis, and no additional limitations from pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the “chronic low back pain with mild thoracolumbar levoscoliosis” as unfitting and rated 0% coded as 5237 (lumbosacral strain) designating the condition as “existing prior to service and aggravated by 2 motor vehicle accidents.”  The VA granted service-connection and gave a rating of 20% coded 5237 based on the 7 September 2006 post separation C&P exam.  The MEB NARSUM examiner documented painful motion and the physical therapy ROM documented a forward flexion of 70 degrees, in support of a 10% rating.  The C&P exam and the VA rating decision documented painful motion and thoracolumbar flexion to 60 degrees in support of a 20% rating.  Board members agreed that both the MEB and VA exams were considered of equal weight and appropriate to use for rating purposes.  Scoliosis itself is a developmental condition of the middle thoracic back, and, in this case, was not a result of muscle spasm resulting from low back pain.  There was no additional pre- or post-separation evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour in support of a 20% rating.  There was no evidence of ankylosis, or flexion less than 30 degrees in support of a higher rating.  There was no evidence of intervertebral disc syndrome or incapacitating episodes requiring physician prescribed bed rest for rating under that formula.  There was no evidence of a radiculopathy that rose to the level of separately unfitting for additional disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 20% for the low back condition, coded as 5237 (lumbosacral strain).  

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 low back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 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	
Chronic Low Back Pain With Mild Thoracolumbar Levoscoliosis	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, 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, AR20160000330 (PD201400056)

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:

CF: 
(  ) DoD PDBR
(  ) DVA