RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01566		
BRANCH OF SERVICE:  Army	SEPARATION DATE: 20080519

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-2 (Chemical Operations Specialist) medically separated for a back condition.  Her condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “thoracolumbar spinal fusion with residual pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “spinal fusion” as unfitting, rated 20%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI attached a two page statement to her application which was reviewed by the Board and considered in its recommendations.  Her 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/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 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 20080428	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion	5241	20%	Residuals, Lumbar Spine Injury, with Fracture, L-1, Status Post Thoracolumbar Fusion	5241	20%	20081107	
Other x 0 (Not in Scope)	Other x 0	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20081124 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Spinal Fusion Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s back condition began when she fell approximately 3 feet during an obstacle course in January 2008.  The CI underwent back surgery (a T12-L2 spinal fusion with an L1 corpectomy (incision into side of abdomen)) for a L1 burst fracture with a large retropulsed fragment.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and she was referred for a Medical Evaluation Board (MEB).  The Physical Therapy (PT) exam on 10 March 2008 approximately 2 months prior to separation was done for the MEB range-of-motion (ROM) evaluation.  The physical exam findings are summarized in the chart below.  The MEB NARSUM exam on 28 March 2008 approximately 2 months prior to separation noted complaints of chronic back pain and an inability to do sit-ups, jump run, march, carry any heavy loads or do any heavy lifting.  The physical exam findings are summarized in the chart below.  

At the VA Compensation and Pension (C&P) examination on 7 November 2008, performed approximately 6 months after separation, the CI reported that she had constant dull pain rated 2/10 with pain that radiated to her left knee occasionally and was unable to lift greater than 10 pounds, and she was unable to lift her children due to back pain.  She also reported flare-ups that lasted 30-45 minutes which restricted her movement to lying down or sitting for the time period of the flare.  The physical exam findings are summarized in the chart below.  Radiographs documented surgical changes and mild thoracolumbar scoliosis (abnormal spine contour-lateral curve).  

Thoracolumbar ROM
(Degrees)	PT~2 Mo. Pre-Sep
	MEB ~2 Mo. Pre-Sep
	VA C&P ~6 Mo. Post-Sep
	
Flexion (90 Normal)	35, 35,35	Used ROM from PT	80	
Extension (30)	5 (7,7,7)		20 (22),  (10 after 5 reps)	
R Lat Flexion (30)	15,15,15		10 (12)	
L Lat Flexion (30)	10 (12,12,12)		15	
R Rotation (30)	30 (45,45,45)		30	
L Rotation (30)	30 (42,42,42)		30	
Combined (240)	125		175   	
Comment:  
Surgery ~4 Mo. Pre-Sep	Pain limited; stiff-brace; back moved as single unit with severely limited motion	Pain limited motion; motor/sensory/reflexes nml; gait nml; TLSO brace	Gait nml; increased pain at end point ROM; mild spasm and  tenderness; sensory/reflexes nml; 	
§4.71a Rating	20%	20%	10%-20% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5241 code (spinal fusion); citing flexion limited to 35 degrees IAW VASRD General Rating Formula for Diseases and Injuries of the Spine.  The VA also assigned a 20% rating using the 5241 code based on the VA C&P examination 6 months after separation, citing muscle spasm or guarding severe enough to result in abnormal spinal contour such as scoliosis.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the MEB exam.  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.  There was no associated radiculopathy for separate peripheral nerve rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the spinal fusion 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 spinal fusion 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 20140224, 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, AR20160003203 (PD201401566)

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