RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00082
BRANCH OF SERVICE:  Army	BOARD DATE:  20150616
Separation Date:  20061216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Allied Trade Specialist [Machinist]) medically separated for back pain.  The back 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 “scoliosis” 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 due to thoracolumbar scoliosis without neurologic abnormality” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “The conditions under which I separated have progressively worsened and the pain levels [sic] have also increased dramatically.  Additional hip pain/sciatica, does not allow me to walk on some occasions.”

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 20061004	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Due to Thoracolumbar Scoliosis	5299-5237	10%	Myofascial Back-Syndrome Secondary to
Thoracolumbar Scoliosis with Degenerative Joint Disease (DJD) of the Thoracic Spine	5003-5237	10%	20070319	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 2	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20070503 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Condition.  The CI developed back pain, without a specific trauma, in 2002 and underwent multiple rounds of conservative treatment, including medication, temporary profiles and physical therapy.  A thoracolumbar spine X-ray performed in June 2006 showed scoliosis of the thoracolumbar spine (biphasic; measured 12.8 degrees and 26 degrees).  A magnetic resonance imaging (MRI) of the thoracolumbar spine showed scoliosis with minimal degenerative disc disease and degenerative spondylosis of the mid and thoracic spine.  A lumbosacral spine X-ray and MRI performed in August 2006 were normal.  An orthopedist treatment note in August 2006 documented asymmetry of the lumbosacral spine due to scoliosis and tenderness to palpation (TTP).  The examiner further opined that the thoracolumbar scoliosis had existed prior to service and was aggravated from wearing body armor, rucksack and running.

The MEB narrative summary (NARSUM) exam, approximately 3 months prior to separation, documented complaints of very painful bending and lifting.  The CI rated the marked/constant pain at 8/10 with regular activities and 10/10 if he aggravated it with activities such as sitting still for more than 5 or 6 minutes or running.  He reported that he required a muscle relaxant to sleep and a non-steroidal anti-inflammatory drug during the day.  The MEB NARSUM physical exam findings are summarized in the chart below.

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented complaints of back pain as a constant, dull, pressure that was exacerbated with forward flexion and torso rotation.  The examiner reported:  “He has had a few incapacitating episodes for 4-8 hours at a time over the last 12 month period.”  The VA C&P physical exam findings are summarized in the chart below.

There were range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB/PT ~3 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	75	90	
Extension (30)	20	30	
R Lat Flexion (30)	20	30	
L Lat Flexion (30)	20	30	
R Rotation (30)	30	30	
L Rotation (30)	30	30	
Combined (240)	195	240	
Comment	Painful motion; TTP; neg straight leg raise; scoliosis	Painful motion; motor 5/5 sensory intact; reflexes nml	
§4.71a Rating	PEB 10%	VA 10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the back condition 10%, coded as analogous to 5237 (lumbosacral strain).  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “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 MEB examiner documented TTP in the thoracic and lumbar spine and all exams documented painful motion with no ROM limitation beyond the 10% rating criteria (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM greater than 120 degrees but not greater than 235 degrees).

The CI met the 10% rating criteria for “localized tenderness not resulting in abnormal gait or abnormal spinal contour” or for painful motion.  The CI did not meet the 20% rating criteria as the scoliosis (abnormal spine contour) was not a result of muscle spasm or guarding, and there was no abnormal gait.  There was no evidence of intervertebral disc syndrome and no physician prescribed bed rest for alternate rating.

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 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 “Chronic Back Pain due to Thoracolumbar Scoliosis” 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 20131220 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, AR20150015580 (PD201400082)

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