RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00313
BRANCH OF SERVICE:  Army	BOARD DATE:  20141210
SEPARATION DATE:  20070509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cavalry Scout) medically separated for mid-back pain.  The back pain 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 back pain condition, characterized as “lumbago with thoracic disk degeneration,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (gastroesophageal reflux disease) for PEB adjudication.  The Informal PEB adjudicated “chronic mid-back pain secondary to multilevel degenerative disc disease, T11-T12, without radiculopathy or muscle spasm” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  His pain has increased and he has had extended pain radiating down his left leg due to the aggravated nerve.  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 Veterans Affairs Schedule for Rating Disabilities (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 20070412	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mid-Back Pain …	5299-5243	10%	Degenerative Disc Disease, Lumbar Spine (Also Claimed as Chronic Back Pain)	5242	10%	20070925	
Other x 0  (Not in Scope)	Other x 4	20070925	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20080103 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Chronic Back Pain.  The narrative summary (NARSUM), as supported by the service treatment record, detailed that the CI suffered sharp pain from the lower to upper mid-back in February 2005 after jumping off a truck.  The CI did not improve with physical therapy, pain clinic, narcotic pain medication, profiles (limited duty), and steroid injections.

At the MEB physical exam 3 months prior to separation, the CI had decreased range-of-motion (ROM) of the thoracolumbar spine, tenderness to palpation over the mid-thoracic spine and normal reflexes of the extremities.  Imaging showed mild upper thoracic dextrocurvature (abnormal contour/scoliosis), mild multi-level anterior vertebral lipping (degeneration) and a disc protrusion at T11-12 with degeneration.  At the NARSUM exam, 2 months prior to separation, the CI had tenderness to palpation over the mid-thoracic spine, normal gait and normal strength and sensation in the lower extremities.  Forward flexion was 70 degrees (normal 90 degrees) and combined ROM was 210 degrees (normal 240 degrees).  There was no decrease on repetition.

At the VA Compensation and Pension exam performed 4 months after separation, the CI reported flare-ups of pain that were severe in nature, occurred once every 1 to 2 weeks, usually lasted for a day, and were significantly impairing such that he had to lie down with the flare-ups.  Occasionally, he had numbness and tingling down his leg.  On examination, his posture and gait were normal without ambulatory aid.  There was no muscle spasm, back curvature was normal with normal symmetry (no fixed deformities or postural abnormalities), he had normal motor and sensation, and there was no muscle atrophy or diminished muscle tone.  The CI was able to forward flex 90 degrees (normal 90 degrees) with pain from 60 degrees to 90 degrees, extension was 30 degrees (normal 30 degrees), rotation and lateral bending to the left and right 30 degrees each (normal 30 degrees), with pain on right lateral bending at the end of range.  There was no additional limitation on repetition of motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% under code 5299-5243 citing decreased forward flexion, painful motion, and tenderness of the paraspinal muscles.  The VA rated the condition at 10% under code 5242, citing painful limited motion.  The Board noted that both exams were within 6 months of separation and both met VASRD criteria for a 10% rating.  The Board did not see any pathway to a higher rating under ankylosis of the spine, ROM measurements, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or physician-prescribed bed rest with a duration of at least 2 weeks during the past 12 months.  The Board additionally considered if the CI’s lower extremity symptoms (occasional numbness and tingling) warranted additional disability rating; but, members agreed that the requisite link of these symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  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 pain 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 pain 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 20131226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD 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 forXXXXXXXXXXXXXXX, AR20150008502 (PD201400313)

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			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA