RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01520
BRANCH OF SERVICE:  Army 	BOARD DATE:  20141121
SEPARATION DATE:  20050705

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88N10/Transportation Management Coordinator) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty; however, she performed an alternate event for the annual physical fitness test.  She was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “thoracic back pain, chronic”, was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated at 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI non-concurred with the IPEB findings and recommendations thus requested a Formal PEB (FPEB).  The FPEB review the IPEB proceedings and affirmed the IPEB’s findings and ratings.  The CI concurred with the FPEB and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her application.  

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:  

Service FPEB – Dated 20050404	VA – (2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Post-Traumatic Changes, Thoracic Spine	5010	10%	20050520	
Other x 0 (Not in Scope)	Other x 2	20050520	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050809 (most proximate to date of separation)

ANALYSIS SUMMARY: 

Chronic Back Pain.  In September 2003, the CI initially injured her back in a motor vehicle accident.  In January 2004, she re-injured her back during a road “ruck road march.”  In spite of conservative treatment the CI’s back pain persisted and she was referred to MEB.  The MEB physical examination on 30 December 2004, the examiner noted tenderness to palpation in the right thoracic region, from the level of T4 to T6, but the midline of the back was without tenderness.  The CI was able to heel-toe walk and duck walk, deep tendon reflexes were 2+ bilaterally however the thoracolumbar range-of-motion (ROM) was omitted.
During the VA Compensation and Pension (C&P) examination on 20 May 2005, the CI reported that her back pain did not interfere with ordinary lifting or carrying items and she could sustain heavy physical activities without immediate distress.  The examiner noted that posture and gait were normal.  Physical examination of the back revealed normal spinal curvature, with no paraspinal muscle spasm.  There was no muscle atrophy.  Straight leg raise was negative bilaterally.  Neurological exam (sensory and motor) was normal.  There was no radiation of pain with movement and ROM was normal.  The examiner wrote: “No pathology is identified on physical examination to render a diagnosis.”  The ROM measurements from that evaluation are shown in the chart below.

Thoracolumbar ROM
(Degrees)	VA C&P ~ 6½ weeks Pre-Sep
(20050520)	
Flexion (90 Normal)	90	
Extension (30)	30	
R Lat Flexion (30)	30	
L Lat Flexion (30)	30	
R Rotation (30)	30	
L Rotation (30)	30	
Combined (240)	240	
Comment	Normal ROM	

The Board carefully reviewed all available evidence and directed attention to its rating recommendation.  The Army PEB and the VA chose different coding options for the back condition, but both issued a 10% disability rating.  The Board determined that the VA C&P examination in May 2005 was less than 2 months prior to separation therefore, it had significant probative value and also that the thoracolumbar ROM was normal.  The Board determined that the CI’s back condition was essentially non-compensable based on the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine.  However; IAW VASRD §4.40 (functional loss) and §4.59 (painful motion), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to painful motion.  There was no path to a higher rating since there was insufficient evidence of a significantly disabling back abnormality that would justify a higher rating.  After due deliberation, the Board determined that a disability rating of 10% was appropriate.  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 chronic low 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 20140313, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           XXXXXXXXXXXXXXXXX
	           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 for XXXXXXXXXXXXXXXXX, AR20150007572 (PD201401520)

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