RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00457
BRANCH OF SERVICE:  Army	BOARD DATE:  20150220
SEPARATION DATE:  20070607

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Medium Helicopter Repairer) medically separated for chronic back pain.  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 as “intervertebral disk degeneration with chronic pain syndrome” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (mild levoscoliosis, hyperlipidemia, hypertriglyceridemia, nicotine dependence, and tendinitis of the right shoulder) for PEB adjudication.  The Informal PEB adjudicated “chronic back pain due to lumbar degenerative disc disease, without neurologic abnormality” as unfitting, rated 10% with likely application of the AR 635-40 paragraph B-29 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I think back + shoulder should be higher considering they will only get worse + never better.”

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 20070514	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain due to Lumbar Degenerative Disc Disease, without Neurologic Abnormality	5299-5242	10%	Degenerative Disc Disease Lumbar Spine	5243	10%	STR	
Tendonitis of the Right Shoulder	Not Unfitting	Right Shoulder Tendonitis	5201-5024	10%	STR	
Other x 3 (Not In Scope)	Other x 4 	
Rating: 10%	Combined Rating:  20%	
Derived from VA Rating Decision (VARD) dated 20070711  (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  Mild levoscoliosis is a spine condition and was considered with the primary unfitting back condition.

Back.  The narrative summary (NARSUM), dated 18 April 2007, noted the CI fell twice in August 2003, injuring his back on both occasions.  From summer 2004 until November 2005 he had chronic back pain and sought help in November 2005.  Magnetic resonance imaging showed disk degeneration of L5-S1 and scoliosis of the thoracic spine.  Neurosurgery indicated there was no indication for surgery and recommended conservative management with medications and physical therapy.  Pain persisted without radiation, numbness, or tingling.

On 2 March 2007, physical therapy (PT) conducted the range-of-motion (ROM) measurements for the MEB of the back.  The flexion, extension, and lateral flexion ROM measurements of the thoracolumbar spine from T1-L5 were taken with an inclinometer placed at T12-L1.  Lateral rotation measurements were taken using a goniometer placed at T12-L1.  Measurements showed active forward flexion at 60, 65, 65 degrees (goniometer normal is 90) with a total combined ROM of “169.4” without ankylosing or limited by pain.  There was localized tenderness but no muscle spasm, guarding, abnormal gait, or abnormal spinal contour.

At the NARSUM exam, dated 18 April 2007, a month prior to separation, the CI reported he had daily back pain.  Examination of the lumbar spine noted pain was elicited on extension, right and left lateral flexion, side bending and back extension.  Gait was normal and there was localized tenderness.  The back appeared normal and there were no muscle spasms or motor dysfunction.  On 11 May 2007, PT conducted a new ROM evaluation of the thoracolumbar spine (per PEB request), again using an inclinometer and a goniometer as described previously.  Measures showed active forward flexion greater than 60 degrees but not greater than 85 degrees and combined ROMs greater than 120 degrees but not greater than 235 degrees.  There was localized tenderness and guarding over the right lower lumbar region, but no muscle spasm, abnormal gait, or abnormal spinal contour.

The VARD based its disability rating on the PT exam of 2 March 2007, noting the findings of that exam.  The VA assigned a disability rating of 10%.

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5299-5242 code while the VA rated the condition 10%, coded 5243 (intervertebral disc syndrome).  There were no periods of physician prescribed bed rest for any rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (5243).  The radiographic evidence of scoliosis of the spine was considered a fixed spine defect and not an abnormal contour due to spasm or guarding.  The PT exam a month prior to separation exam was closer to separation and had the highest probative value for rating.  The Board noted that the exam was not strictly IAW VASRD procedures as it used an inclinometer which typically reports lower ROMs than a goniometer.  That exam was consistent with the totality of the record and warranted a 10% rating under the general spine formula.  There was insufficient evidence of ROM limitation of forward flexion of the thoracolumbar spine less than 65 degrees; or, the combined ROM of the thoracolumbar spine less than 125 degrees to warrant a rating higher than 10%.  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 chronic back pain with degenerative disks condition.

The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Pain (whether or not it radiates), stiffness, or aching is rated under the general formula for the spine and was considered in the 5243 rating above.  There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance.  The Board therefore concluded that no peripheral nerve (radiculopathy) condition could be recommended for additional disability rating.

Contended Tendonitis of the Right Shoulder.  The Board’s main charge is to assess the fairness of the PEB’s determination that tendonitis of the right shoulder was not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The NARSUM documented pain in the right shoulder developed while the CI was doing push-ups and lifting in March 2006.  Orthopedics diagnosed rotator cuff impingement syndrome and surgical repair occurred, resulting in minimal problems with the shoulder.  He could not lift greater than 20 pounds.  The tendonitis of the right shoulder was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The shoulder was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the tendonitis of the right shoulder condition and so no additional disability rating is recommended.

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.  As discussed above, PEB reliance on the service regulations was likely operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended tendonitis of the right shoulder condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140117, 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, AR20150011007 (PD201400457)

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