RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00098
BRANCH OF SERVICE:  Army	BOARD DATE:  20141105
SEPARATION DATE:  20080301

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35F/Intelligence Analyst) medically separated for chronic low back pain secondary to scoliosis.  The back 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “chronic back pain/congenital scoliosis”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB for PEB adjudication.  The Informal PEB adjudicated chronic low back pain secondary to scoliosis as unfitting, rated at 0%.  The CI made no appeals.  Post the CI’s separation from service, the US Army Physical Disability Agency administratively corrected the IPEB IAW AR 635-40 para 4-22c (1) in order to be concurrent with Disability Evaluation System’s (DES) policies updates provided by National Defense Authorization Act, Fiscal Year 2008.  This correction had no bearing on the rating.

CI CONTENTION:  “After being discharged with a 0% rating, for the last five years I have had consistent pain due to the injuries/illnesses I was discharged for. In addition, I received a disability rating of 40% by the Dept. of VA for those same conditions.”

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 back 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. 

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veteran Affairs (VA), operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12 months interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  

PDA Admin Correction – Dated 20080307	VA - (11 Days Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Secondary to Scoliosis	5299-5237	0%	Lumbago Secondary to Scoliosis	5237	10%	20080312	
Other x 0 (Not in Scope)	Other x 3	20080303	
Rating:  0%	Combined Rating:  40%	
Derived from VA Rating Decision (VARD) dated 20080411 (most proximate to date of separation)

ANALYSIS SUMMARY:   

Low Back Pain (LBP).  In October 2006, the CI injured his back during training at a firing range.  Radiologic imaging of the spine showed a mild S-shaped scoliotic curvature of the thoracolumbar.  The CI’s condition was treated conservatively with medication, physical therapy (PT) and chiropractic manipulation without satisfactory results; thus he was referred for a MEB.  The MEB physical examination occurred in October 2007, the CI reported his back pain was constant, exacerbated by lifting/carrying objects, walking, running and prolonged sitting.  The pain did not radiate into his legs.  On physical examination, the spine was non-tender and the CI’s gait was normal.  Straight leg raise (SLR) was negative bilaterally.  Neurological exam was normal.  The MEB diagnosis was, “chronic back pain/congenital scoliosis”.  Thoracolumbar range-of-motion (ROM) was measured by PT and is provided in the chart below.

At the VA Compensation and Pension (C&P) examination dated 12 March 2008, the CI reported LBP occurred weekly and was alleviated with heat and rest.  On physical examination, he was alert, active and appeared to be in no distress, acute or otherwise.  Gait was normal.  The back was non-tender and no reports of spasm.  SLR was negative and neurological exam was normal.  Thoracolumbar ROM was normal and is shown in the chart below.
                       
Thoracolumbar ROM
(Degrees)	PT/MEB ~ 4½ mos. Pre-Sep
	VA C&P ~ 11 days Post-Sep
	
Flexion (90 Normal)	65	90	
Extension (30)	20	30	
R Lat Flexion (30)	25	30	
L Lat Flexion (30)	25	30	
R Rotation (30)	20	30	
L Rotation (30)	30	30	
Combined (240)	185	240	
Comment	Pain limited motion	Pain with motion	
§4.71a Rating	10%	10%*	
                                    *10% based on VASRD §4.40 (Functional loss), and §4.59 (Painful motion)

After carefully examining all available evidence, the Board directs attention to its rating recommendation.  The Board determined the PEB ROM for flexion and the combined ROM supports a 10% rating IAW VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine (flexion greater than 60 degrees and combined ROM greater than 120 degrees but not greater than 235 degrees).  The CI’s back condition clearly improved during the period from October 2007 through March 2008.  At the VA C&P examination in March 2008 the thoracolumbar ROM was normal.  Noting that this examination was obtained 11 days post-separation; the Board determine that it has the greater probative value.  The Board determined that the CI’s painful back condition was not-compensable based on the VASRD §4.71a, however; IAW VASRD §4.40 (functional loss) and §4.59 (painful motion), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  Therefore, a 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to painful motion.  There was no path to a higher rating since there was insufficient evidence of a significantly disabling back abnormality that would justify a higher rating.  After due deliberation, the Board determined that a disability rating of 10% was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for chronic LBP, secondary to scoliosis.

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 LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.40, §4.59, and §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, 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	
Chronic low back pain, secondary to scoliosis	5299-5237	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131223, 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, AR20150003753 (PD201400098)

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 10% 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						     

CF: 
(  ) DoD PDBR
(  ) DVA