RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxxxxx 	CASE:  PD-2014-01022 
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantry) medically separated by the Informal Physical Evaluation Board for back pain, rated 10%.

CI CONTENTION:  He was not evaluated for his PTSD, left and right knee conditions.  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 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 PEB - 20081020	VARD - 20090130  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain, Insidious onset Evaluated Analogous to Lumbosacral Strain…	5299-5237	10%	Residuals of Thoracic and Lumbar Scoliosis	5239	20%	20081112	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Back Pain, Insidious Onset Analogous To Lumbosacral Strain.  

According to service treatment records and the MEB narrative summary (NARSUM), the CI’s lower back pain condition began in October 2004.The CI denied any specific injury or trauma.  Radiographic studies showed three scoliotic deformities of the thoracolumbar spine.  Despite treatment physical therapy, chiropractic care, activity modification, and pain medications, the CI’s back condition could not be adequately rehabilitated.  The goniometric range-of-motion (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)	MEB ~4 Mo. Pre-Sep
(20080918) 	VA C&P ~2 Mo. Pre-Sep
(20081112) 	
Flexion (90 Normal)	90	0-90	
Extension (30)	15	0-30	
R Lat Flexion (30)	24	0-30	
L Lat Flexion (30)	15	0-30	
R Rotation (30)	12	0-45	
L Rotation (30)	25	0-45	
Combined (240)			
Comment	Painful motion, scoliosis,	Painful motion, muscle spasm, scoliosis	
§4.71a Rating	10%	20%	

At the NARSUM examination dated September 2008, 4 months prior to separation, the CI reported 7/10 mid-thoracic back pain.  The physical examination showed a slight spinal curvature and thoracic paraspinal tenderness to palpation without muscle spasm.  At a chiropractic evaluation dated October 2008 exam, the CI reported 7/10 back pain which worsened with prolonged sitting and twisting activities.  The examiner noted that there was no history of trauma or injury.  The physical examination showed thoracic tenderness to palpation, spasms of the paraspinal muscles, painful motion, a normal gait, and scoliosis.  At the VA Compensation and Pension examination dated November 2008 (2 months before separation), the examiner noted that the CI had a thoracic curvature (scoliosis) resulted in pain and spasm. The physical examination showed scoliosis of the thoracic spine, thoracolumbar paraspinous muscle spasm, painful motion, and a normal gait.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10%% rating under an analogous 5237 code (lumbosacral strain), citing painful motion and scoliosis without muscle spasms.  The VA assigned a 20% rating using the 5239 code (spondylolisthesis or segmental instability) based on the VA C&P examination 2 months before separation, citing evidence of muscle spasm resulting in an abnormal spinal contour (scoliosis).  In considering other pathways to a higher than 10% rating, it was noted the CI was referred to the PEB for symptomatic scoliosis citing AR 40-501, Chapter 3.39 (g).  The Board also noted that there was no in service history of trauma (spinal cord injury, vertebral trauma, extra-vertebral trauma (e.g., thoracic surgery), or spinal irradiation that would have resulted in an acquired scoliosis.  Although there was a history of intermittent muscle spasms, there was no evidence of use of a muscle relaxant and multiple examinations documented a normal gait.  The Board concluded that the evidence did not support a rating for muscle spasm or guarding severe enough to result in abnormal spinal contour or abnormal gait.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed Board consensus was that a disability rating of 10% for the back pain condition was appropriately recommended in this case. 

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.  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 20140227, 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, AR20160002515 (PD201401022)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA