RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00081
BRANCH OF SERVICE:  Army	BOARD DATE:  20140930
SEPARATION DATE:  20091012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92F/Fuel Specialist) medically separated for degenerative arthritis of the thoracolumbar spine.  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 U3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “degenerative disc disease of the thoracolumbar spine,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions.  The Informal PEB (IPEB) adjudicated “degenerative arthritis of the spine” as unfitting, rated at 10%, referencing the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI non-concurred with the IPEB findings and recommendations, thus requested and was granted a Formal PEB.  The FPEB reviewed the IPEB’s proceedings, modifying the condition to “degenerative arthritis of the thoracolumbar spine,” rated at 10%.  The CI concurred with FPEB findings, made no further appeals and was medically separated.

CI CONTENTION:  “I feel that the initial 10% for my lower back is to low.  When the VA’s initial rating for the back was 20% and now its 40%.” 

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 thoracolumbar spine 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 FPEB – Dated 20090701	VA* - (11 Days Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Thoracolumbar Spine	5242	10%	Thoracolumbar Compression Fracture with Degenerative Joint Disease	5242	20%	20091021	
Other x 0 (Not in Scope)	Other x 5 (Not in Scope)	20091021	
Combined:  10%	Combined:  70%	
*Derived from VA Rating Decision (VARD) dated 20100225 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Thoracolumbar Spine Condition.  The Service treatment record (STR) documents a back injury dating to 2003, with no follow-up entries until a second injury that was reported in February 2008.  There are fairly frequent entries for the condition starting around that time, with varying reports of duration of symptoms and the details of onset.  The condition was first profiled in November 2008 after a magnetic resonance imaging demonstrated spinal degenerative changes, disc disease (minor bulges, L4/5 and L5/S1) and a chronic mild compression fracture at T-12.  The CI was followed by orthopedics and underwent a series of epidural spinal injections with temporary improvement, but did not improve enough with physical therapy and conservative measures to overcome the need for a profile.  A neurosurgical consultant did not advocate surgery and a MEB were initiated.  The mid to lower back pain condition was not associated with significant radicular symptoms.  There were numerous neurological examinations in the CI’s STR, with normal thoracolumbar range-of-motion (ROM), both preceding and during the MEB period.  Most documented grossly normal ROM (although painful motion); several noted “25%” reduction in most or some planes; and, a pain consultant (6 months prior to separation) recorded flexion of 70 degrees (normal 90 degrees) and extension of 10 degrees (normal 30 degrees).  The MEB’s formal ROM evaluations by physical therapy are capture in the below charted.  

There is also an informal physical therapy entry during the post-appeal period that documents ROM “grossly limited 50% with pain” also numerous STR entries noting normal gait, but occasional mention of antalgic gait.  Documentation of diagnostic images and examination’s evidence of kyphosis (abnormal spinal contour), but not link with muscle spasms or guarding.  No evidence for incapacitating episodes documented in STRs.

The narrative summary (NARSUM) documents a history of back pain dating to advanced individual training in 2007, without specific injury.  The examiner’s only characterization of the pain was “unrelenting” without specified radicular symptoms and only specific profile limitations were elaborated.  During the physical examination, the examiner noted a normal gait, spinal curvature without tenderness or spasm, normal strength and neurologic findings.  The initial MEB’s ROM measurements charted below were referenced and painful motion was confirmed.  Following the IPEB appeal and prior to the FPEB, the CI requested repeat ROM measurements.  ROMs measurements are capture below in chart.  

During the VA Compensation and Pension (C&P) evaluation (performed 11 days post separation), the CI reported constant “severe” pain “exacerbated by physical activity,” reporting inability to lift more than 10 pounds, without radicular symptoms.   The VA physical examination recorded normal contour with tenderness but no spasm and normal neurologic testing.  The VA ROM measurements are charted below.

The goniometric ROM evidence which the Board weighed for its recommendation is summarized in the chart below.

Thoracolumbar ROM	MEB PT (Pre-Appeal)
~6 Mo. Pre-Sep	MEB PT (Post-Appeal)
~4 Mo. Pre-Sep	VA C&P
11 Days Post-Sep	
Flexion (90⁰ Normal)	90⁰	45⁰	50⁰	
Combined (240⁰)	230⁰	110⁰	120⁰	
§4.71a Rating	10%	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB assigned probative value to the initial MEB ROM evaluation (acknowledging the repeat measurements) which supported its 10% determination IAW VASRD §4.71a.  The VA’s determination was premised on the VA’s C&P ROM evidence, satisfying the §4.71a criterion of flexion 30 degrees to 60 degrees for a rating of 20%.  Members agreed that the independent §4.71a criteria of abnormal gait or contour for a 20% rating were not satisfactorily supported by the evidence.  Members then deliberated the probative value of the post-appeal MEB and C&P ROM evidence versus the pre-appeal MEB and preceding STR ROM evidence in arriving at the Board’s recommendation.  Deliberations raised concerns regarding the unexplained development of significant ROM deterioration in the context of rating evaluations after a well-documented preceding stable course of 18 months duration without this degree of ROM limitation; but, members note that of the three ROMs evaluations in evidence which are compliant with VASRD §4.46 (accurate measurement), two of them satisfy the §4.71a criteria for a 20% rating.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board consensus recommendation is a disability rating of 20% for the thoracolumbar spine condition.  The PEB and VA coding choice, 5242 (degenerative arthritis of the spine), is applicable.

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 5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, by a majority vote, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Arthritis of the Thoracolumbar Spine	5242	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

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150006828 (PD201400081)

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			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA