RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01097
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Infantry, medically for “low back pain” with a disability rating of 10%.

CI CONTENTION:  The CI requests consideration of all conditions in their application.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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:  

SERVICE PEB - 20051102	VARD - 20060831	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5235	10%	T12 Fracture…	5235	20%	20060519	
Peptic Ulcer	 (Not Disqualifying, Not Adjudicated)	No VA Entry	
Anxiety/Depression	 (Not Disqualifying, Not Adjudicated)	PTSD with Depression	9411	10%	20060421	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially sustained injuries to his back during an airborne parachute operation in July 2004 and was diagnosed with severe whiplash and concussion.  Then in October 2004, he was involved in a motor vehicle accident.  Radiographs showed evidence of loss of greater than 60% vertebral disc height consistent with a compression fracture at T12, and a subsequent computerized tomography (CT) scan confirmed the presence of a burst fracture at T12.  In April 2005 the spine surgeon discussed possible surgical options; however, the CI declined, which was deemed to be reasonable.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for n   (MEB).  

The range of motion (ROM) examinations 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)	PT for MEB
~9 Mo. Pre-Sep	MEB NARSUM
~5 Mo. Pre-Sep	VA C&P General
~4 Mo. Post-Sep	
Flexion (90 Normal)	70	Poor flexion	~70	
Combined (240)	210			
Comment	 (Painful motion)	 (Significant TTP mid and lower thoracic and lumbar areas)	(Stopped ROM due to visible-marked muscle spasms [pain])	
§4.71a Rating	(10%)	10%  	20%  	

A pain clinic examination on 26 April 2005 (9 months prior to separation) noted complaints of constant dull ache with muscle spasms.  Physical examination showed “dramatic” tenderness of the thoracic spine, and noted the CI walked with a “strange, stilted gait, but is able to flex the spine completely on exam.”  

The MEB physical therapy range of motion (ROM) examination on 21 April 2005 (9 months prior to separation) noted pain limited thoracolumbar ROM, as recorded in the chart.  The MEB NARSUM examination on 6 August 2005 (5 months prior to separation) noted significant tenderness with palpation, and poor waist flexion and extension due to pain.  There was TTP of the thoracic and lumbar spine.  The CI reported bilateral lower extremity numbness with straight leg raise testing.  Neurologic examination was normal.  The MEB NARSUM examiner noted the CI’s present condition had deteriorated over the past year and was unable to stand or walk for any length of time due to severe pain.

At the VA Compensation and Pension (C&P) examination on 19 May 2006, performed 4 months after separation, the CI reported constant pain aggravated by movement or forward flexion, and sitting for more than an hour caused his leg to go numb.  Physical examination noted a steady gait and exquisite tenderness and guarding with very light finger pressure of nearly the entire thoracic and lumbar spines (T2-L4).  There was “obvious, visible, widespread” muscle spasm and straightening of the normal thoracic and lumbar spine curvature.  Thoracolumbar ROM after repetition was limited, as recorded in the chart.  The examiner indicated that he did not request repetitive ROM due to due to muscle spasm and “obvious discomfort.”  The examiner commented that “it is evident that there is increased functional loss due to pain and weakness after repetitive motion” and estimated that there was an additional loss of 20 degrees with repetition, but noted that “even with aggravation, he [the CI] maintained the ability to sit and stand.”  A lumbar MRI performed by the VA on 21 December 2006, 11 months after separation noted the vertebral compression fracture at T12 and noted degenerative disc disease of the lower thoracic and upper lumbar spine with “mild impingement symmetrically.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% coded 5235 (vertebral fracture or dislocation), citing spinal fracture (at T12) and painful limited motion.  The VA rated the back condition 20% also coded 5235, based on the VA C&P examination 4 months after separation, citing muscle spasm that resulted in an abnormal gait or abnormal spinal contour.  

The Board noted the disparity between the MEB NARSUM and C&P examinations and carefully reviewed the evidence proximate to separation to determine the probative value of each examination.  The Board noted that the MEB NARSUM examination supported a 10% rating based on limitation of thoracolumbar ROM or a vertebral fracture with loss of 50% or more of the height, while the proximate post-separation VA C&P examination supported a 20% rating based on “muscle spasm or guarding serve enough to result in an abnormal gait or abnormal spinal contour.”  Board members agreed that both the MEB and VA examination were of equal quality with regard to rating the back condition at the time of separation and also noted that there was no other evidence proximate to separation which would add weight favoring the 10% versus the 20% rating.  Therefore, in consideration of reasonable doubt (§4.3) and higher of two evaluations (§4.7) as well as the functional limitations (§4.40, §4.45) described in the MEB NARSUM and VA examinations, the Board recommends the 20% rating.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also deliberated if additional disability was justified for lower extremity radiculopathy.  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.  Although the CI experienced radiating numbness or pain, there was no objective evidence of functional impairment with a direct impact on fitness.  The radiating pain component is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concludes that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition, coded 5235.  

Contended PEB Conditions.  The PEB did not adjudicate the peptic ulcer and anxiety/depression conditions identified by the MEB.  The PEB’s silence on this condition is taken by the Board as a de facto determination that these conditions were considered not unfitting.  The Board’s main charge is to assess the fairness of the PEB’s determination that peptic ulcer and anxiety/depression conditions were not unfitting.  The peptic ulcer and anxiety/depression conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 peptic ulcer and anxiety/depression conditions and so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  In the matter of the contended peptic ulcer and anxiety/depression conditions, the Board unanimously agrees that it cannot recommend either for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  

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

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5235	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160008280 (PD201401097)

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