RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	              CASE:  PD-2014-00697
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060421

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for an Medical Evaluation Board (MEB).  Fracture L4 and L5 vertebrae condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated vertebral fracture L4/L5 as unfitting, rated 10% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was discharged after my vertebrae were fractured as the result of an I.E.D.  I have recently been tested for hearing loss and not have to wear hearing devices.”  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 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:  

IPEB – Dated 20060331	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Vertebral Fracture L4/L5	5235	10%	Compression Fracture L4 and L5…	5235	10%	20060824	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 11	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20061027 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Vertebral Fractures L4/L5 Condition.  The CI was in an IED (improvised explosive device) blast on 25 April 2005 with multiple injuries including fractures of the lower thoracic and lumbar spine.  X-rays on 9 May 2005 showed a stable comminuted fracture (several pieces) of L4 and wedge deformities (compression deformity) of T11, T12, and L1.  X-rays on 25 June 2005 showed the remainder of the thoracic spine to be normal.  An examination in orthopedics on 23 September 2005 (7 months pre-separation) noted a normal back examination with both the range-of-motion (ROM) and neurological examinations normal.  These findings were stable at follow up appointments on 24 October 2005 and 19 December 2005.  A computer tomography scan of the lumbar spine on 4 November 2005 showed a fracture of L4 as well as disc bulges at L3-4 and L4-5.  The CI was issued an L3 profile on 20 December 2005 and referred for MEB.  On the DD Form 2808, Report of Medical Examination, on 19 January 2006, 3 months prior to separation, the CI reported ongoing back pain.  The examiner noted that the CI was tender at L4-L5, but without radicular (signs) and a normal neurological examination.  Formal ROM testing was done in physical therapy (PT) 2 weeks later (3 months pre-separation) and is charted below.  The MEB narrative summary (NARSUM) was dated 6 February 2006, 2 months prior to separation and noted that the CI had a non-healing fracture at L4 and ongoing LBP.  He was thought to have a high pain tolerance, but was in significant pain when rising from sitting to standing and bending to pick up objects.  The neurological examination was normal and atrophy was absent.

At the VA Compensation and Pension (C&P) examination performed on 24 August 2006, 4 months after separation, the CI reported back pain if he carried a heavy object, sat in a car over an hour, or if the weather changed.  He denied incapacitation.  On examination, the ROM was reduced as charted below.  The neurological examination was normal for the back (there was an unrelated deficit in the neck).  No comment was made on the gait.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Ortho
~7 Mos. Pre-Sep	MEB PT 
~3 Mos. Pre-Sep	MEB NARSUM
~2 Mos. Pre-Sep	VA C&P
~4 Mos. Post-Sep	
Flexion (90 Normal)	With Normal Limits	60 (60, 60, 60)	45	80	
Combined (240)		200	---	210	
Comment	Pain free motion	Pain with flexion and extension	Grimacing with movement on the examination table	Pain with movement on the examination table	
§4.71a Rating	10%	20%	20%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition at 10%, coded 5235 (Vertebral fracture).  The Board noted that the ROM testing in orthopedics and at the VA C&P support a 10% rating.  However, the MEB PT and NARSUM measurements support a 20% rating.  The CI also demonstrated pain with changes in position and stood for the entire 90 minute NARSUM examination.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt) and §4.40 (functional loss), the Board recommends a disability rating of 20% 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.  As discussed above, PEB likely reliance on the USAPDA pain policy for rating the back condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the vertebral fracture L4-L5 condition, the Board unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

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

CONDITION	VASRD CODE	RATING	
Vertebral Fracture L4-5…	5235	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140105, 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 XXXXXXXXXXXXXXXXXX, AR20160002524 (PD201400697)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA