RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01581
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E5, Combat Engineer, medically separated for  “compression fractures of T7, T8 with mid-back pain…,” with a disability rating of  10%.  

CI CONTENTION:  “Not all the conditions were found most notably Trumatic Brain Injury.”  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 - 20040811	VARD - 20051012	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Compression Fracture of T7, T8, with Mid-Back Pain…	5235	10%	Compression Fracture, T6-8, Dorsal Spine with Chronic Pain Syndrome Mid Back and Left Lower Extremity	5235-5243	20%	20041007	
			Right Upper Trapezius Myofascial Pain Syndrome	8311-5020	10%	20041007	
Major Depressive Disorder, Single Episode, Moderate	Not Unfitting	Major Depression	9434	30%	20041007	
Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	0%	20041007	
		Tinnitus	6260	10%	20041007	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Compression Fractures with Mid-Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s compression fractures with mid-back pain began in July 2000 following a fall.  The CI had an exacerbation of back pain in March 2003 with progression of mid-back pain symptoms and also complained of tingling (paresthesias) and some pain in his right arm.  Imaging studies showed degenerative disc disease in the thoracic spine.  

At the neurosurgery evaluation on 24 October 2003, 11 months prior to separation, the CI complained of severe back pain.  Examination documented back tenderness and painful motion.  Back range of motion (ROM) measurements indicated “on the back range of motion the patient can flex forward placing his fingertips to the ankle [approximately over 60 degrees, but less than 90 degrees]...,” and back extension was approximately 20 degrees (normal 30 degrees).  Lower extremity strength, sensation and reflexes were normal, and provocative tests for radicular signs were negative.  Magnetic resonance imaging (MRI) studies of the thoracic spine on 21 November 2003 showed compression fractures of T7 and T8 associated with corresponding bone spurs that impinged on the surface of the spinal cord at the T6-7 and T7-8 levels.  

At the neurosurgery and physical medicine evaluations on 24 December 2003, 9 months prior to separation, the CI complained of worsening back pain becoming unbearable with impacting activity.  Pain was reported as radiating to the right shoulder and the CI denied associated weakness, numbness or bowel/bladder incontinence.  Examination documented normal reflexes with no motor or sensory deficits.  The diagnosis was marked degenerative joint disease T6-7, T7-8; and surgery not currently indicated.  

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 a MEB.  The MEB forwarded “chronic back pain with compression fractures of T7 and T8, and degenerative disease throughout the thoracic spine” for PEB adjudication.  

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)	PHYS MED ~12 Mos. Pre-Sep	VA ~5 Days. Post-Sep	
Flexion (90 Normal)	Fingertips to the ankle; extension 20 (of 30)	90	
Combined (240)		240	
Comments	Painful motion; tenderness	Abnormal gait; limping on the left leg; guarding	
§4.71a Rating	10%	20%	

At the MEB NARSUM examination on 8 March 2004, 7 months prior to separation, the CI reported complaints of severe back pain in the mid and upper back, numbness and, and impaired use of his arms due to the back pain.  Pain was aggravated by lifting, walking, or carrying articles.  The CI reported constant 3/10 pain (up to 10/10) which was sharp, dull, hot or cold depending on the activity, with flares that could last several days.  He indicated he had “rectal fluid leakage with stressful working, hard working or prolonged walking.”  Physical examination showed tenderness in the mid back, and mild muscle spasms with normal gait.  The examiner was silent regarding spinal contour and ROM measurements.  Upper and lower extremity neurologic, vascular, and motor/strength were intact.  Medications included narcotic pain medication, neuroactive medication, and a nonsteroidal anti-inflammatory medication.  

Physical Medicine’s addendum to the MEB dated 4 April 2004, 6 months prior to separation, summarized civilian specialty referral care from 9 March 2004.  The CI’s complaints were similar to those at the MEB and included bowel incontinence.  Recommendations included tapering off of narcotic pain medication, neurosurgical evaluation for incontinence and a structured pain program with rehabilitation counseling.  

The Physical Medicine addendum to the MEB dated 26 April 2004, 5 months prior to separation, included electrodiagnostic studies which showed moderate bilateral cubital tunnel syndrome (across the elbows) and were otherwise negative.  A bone scan showed activity on the left distal ribs at T6-T7 and in the vicinity of the T7 and T8 vertebrae which coincided with the area of the spine compression fracture (from MRI).  The examiner’s assessment summarized that the bone scan strongly suggested an active (unhealed) thoracic compression fracture, and recommended waiting 1 year before considering interventional procedures.  Diagnoses also included right upper trapezius myofascial pain syndrome; and, moderate bilateral cubital tunnel syndrome (based on the history, clinical examination, and the electrodiagnostic studies).  

At the VA Compensation and Pension (C&P) examination on 7 October 2004, performed 5 days after separation, the CI reported persistent pain (rating 7-8 out of 10) and weakness in his back and left leg, with “incontinence of stool in a small liquid amount.”  The back pain prevented him from laying on his back or stomach and having sexual intercourse in those positions.  Pain also radiated to the side and front of the chest area.  Physical examination showed an abnormal gait, limping on his left leg, and using a stick to lean on.  The examiner was silent regarding muscle spasms and spinal contour.  Straight leg raise testing (for radiating symptoms) was negative.  ROM measurements were flexion 90 degrees (normal 90) and combined ROM 240 degrees (normal 240).  There was no pain associated with ROM measurements and the examiner indicated flare ups and repetitive motion did not cause additional limitation of ROM of the spine.  The related diagnoses were compression fracture … spine with chronic pain syndrome mid back and left lower extremity; right upper trapezius myofascial pain syndrome …; and right scapular fasciitis-resolved.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the compression fractures of T7, T8 with mid-back pain and tenderness to palpation condition 10% coded 5235 (vertebral fracture or dislocation), citing localized tenderness.  The VA rated the compression fractures of T7, T8 with mid-back pain and tenderness to palpation condition 20% coded 5235-5243 (vertebral fracture or dislocation - intervertebral disc syndrome), based on the VA C&P examination 5 days after separation, citing spasm or guarding severe enough to result in an abnormal gait.  The VA also rated right upper trapezius myofascial pain syndrome at 10% coded 8311-5020 (eleventh [spinal accessory, external branch] with synovitis) citing painful or limited motion.  

The Board deliberated on the interpretation and probative value of the exams in evidence and the totality of the record.  The VA examination, conducted 5 days after separation, was closer to the date of separation and had the highest probative value for rating at separation, with consideration of the MEB NARSUM examination and addendums.  The VA examination noted guarding and an abnormal gait which meets the 20% rating criteria of “muscle spasms or guarding severe enough to result in abnormal gait….”  The Board concluded that this was a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait).  There was no ROM limitation that would provide for any higher rating under the general spine formula.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment as awarded by the VA.  The CI reported upper back, shoulder area and chest pain as well as limitations of his right arm due to pain as a significant component of the overall disability picture.  Any disability of the legs and unspecified bowel control were considered under the unfitting back condition.  The disability at and below the elbows was not related to the unfitting back condition, but to cubital tunnel syndrome bilaterally.  However, the CI’s right chest and upper back and arm intermittent paresthesia/numbness and pain were diagnosed as right upper trapezius myofascial pain syndrome.  This was considered as analogous to a neuritis of the external branch of the spinal accessory nerve and attributable to, or as a residual of, the unfitting thoracic spine condition.  The general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” does not typically include myofascial pain or pain syndromes.  The Board deliberated if there was sufficient functional impairment from the right upper trapezius area pain syndrome (such as interference with lifting, carrying or wearing vest and rucksack) that had a direct impact on fitness, and were separable from the thoracic spine condition, to considerer the myofascial pain syndrome condition as separately functionally impairing for duty.  The Board considered the commander’s statement and evidence of the record and concluded that the right upper trapezius myofascial pain syndrome was separately unfitting and ratable and met the 10% “moderate” rating level analogously coded under 8311 (eleventh [spinal accessory, external branch]).  

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 compression fractures with mid-back pain condition, coded 5235; and a disability rating of 10% for the right upper trapezius myofascial pain syndrome coded 8311-5020.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that major depressive disorder (single episode, moderate) and hearing loss were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Both of the contended conditions were profiled as level 2 (S2 and H2 respectively, which meet retentions standards) and neither was implicated in the commander’s statement or judged to fail retention standards.  Both conditions were reviewed and considered by the Board.  There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 major depressive disorder (single episode, moderate) and hearing loss contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the compression fractures with mid-back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a; and a rating of 10% coded 8311-5020 IAW VASRD §4.124a.  In the matter of the contended depressive disorder (single episode, moderate) and hearing loss conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Compression Fracture of T7, T8, with Mid-Back Pain and Tenderness to Palpation	5235	20%	
Right Upper Trapezius Myofascial Pain Syndrome	8311-5020	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130111, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160010516, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with
severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-00), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure