RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01940
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20090901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Wheeled Vehicle Mechanic) medically separated for “chronic thoracolumbar back pain…secondary to kyphoscoliosis and multilevel disc disease,” rated 20%.

CI CONTENTION:  The CI requests a review of his thoracolumbar spine rating, and references a right (but not left) knee condition.  The applicant’s 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 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 20090720	VA* (10 Weeks Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Back Pain …	5299-5243	20%	Thoracolumbar Strain	5237	40%*	20091215	
			Radiculopathy, Right Lower Extremity	8520	10%*	20091215	
Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  20%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20100119.  The original VARD dated 20080207 conferred a 0% spine rating without additional rating for a radiculopathy based on the CI’s failure to report for a scheduled exam.  Charted exam and ratings are significantly probative to the date of separation (DOS), although the original VARD used proximate service evidence. 

ANALYSIS SUMMARY:  

Thoracolumbar Spine Condition.  The CI was medically separated from the Army for back pain in July 2007, and returned to active duty on a medical waiver in December 2008.  The narrative summary (NARSUM), supplemented by the outpatient service treatment record (STR), documented an onset of back pain with training activities (no trauma) soon after re-entry.  Magnetic resonance imaging diagnosed multi-level degenerative disc disease (T5-10 and L5/S1, without neural compromise) and confirmed the pre-existing kyphoscoliosis (anatomic spinal contour abnormality) evidenced in the earlier enlistment.  Outpatient STR entries from the 9-month interval between re-entry and the final separation documented the absence of radicular complaints and numerous normal neurological examinations, with none to the contrary.  The range-of-motion (ROM) evidence from the outpatient evidence in this interval consisted of either grossly normal ROM observations or documentation of painful motion without specifying ROM limitation.  Various entries confirmed a normal gait and the absence of spasm.  There were no STR entries contrary to any of these ratable features, or documentation of incapacitating episodes.

The NARSUM was conducted 19 May 2009 (3½ months pre-separation) and documented “constant” pain without radiation, subjective weakness, or sensory complaints; specifying functional limitations with prolonged walking, load bearing and lifting.  The NARSUM physical examination recorded a normal gait, the baseline kyphoscoliosis, the absence of tenderness, spasm or guarding, and normal neurological findings (5/5 strength).  With regards to ROM, the NARSUM documented only that it was “decreased ... secondary to pain only;” and, the MEB’s DD Form 2808 medical examination (same day as NARSUM) documented “slight decreased ROM.”  Formal ROM measurements for the MEB were conducted by physical therapy (PT) two months later (17 July, 6 weeks pre-separation).  These were flexion to 40 degrees (normal 90) and combined ROM of 120 degrees (normal 240).  

A VA Compensation and Pension (C&P) examination was conducted 15 December 2009 (10 weeks post-separation) and documented constant “moderate” pain with radiation, paresthesias, and subjective weakness; specifying functional limitations with walking over a mile and “mild” occupational impairment.  The VA physical examination recorded a normal gait and spinal contour, with tenderness and spasm.  The neurologic findings (albeit contradictory in various sections of the examination) were positive for sensory impairment in the right lower extremity (multiple lumbar dermatomes), with normal reflexes and strength; and, the examiner opined that there was a right sciatic neuropathy.  The VA measured ROM was flexion to 30 degrees and combined 130 degrees, without additional limitation with repetition (no DeLuca modification).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating analogous to 5243 (intervertebral disc syndrome) cited the PT ROM measurements and was consistent with VASRD §4.71a criteria for that evidence.  The VA’s 40% rating under 5237 (thoracolumbar strain) was based on the C&P flexion to 30 degrees which is the §4.71a threshold for the higher rating.  The VA decision also cited the C&P examiner’s opinion from above in conferring additional rating for a right sciatic neuropathy.  There is no documentation of incapacitating episodes which would support a higher rating under that formula.  There is a disparity in this case between the Service and VA ROM findings with obvious implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  There is ample evidence of a baseline for an extended period with little ROM limitation leading up to the formal ROM measurements linked to rating.   The overall clinical acuity (chronic stable degenerative disc disease without complications) and functional capabilities (documented limitations, normal gait) are also more consistent with less severe ROM limitation.  Members agreed, therefore, that the Board’s recommendation was more reasonably (and fairly) premised on the Service evidence.  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 of the lumbar spine condition.

The Board considered as well whether additional rating could be recommended for the associated RLE radiculopathy identified by the VA examiner.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no motor deficit in this case, and the equivocal sensory deficit had no functional implications.  Members thus agreed that there was insufficient evidence of separately ratable functional impairment from the (possible) residual radiculopathy, and the Board cannot support a recommendation for additional disability rating on this basis.  

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 lumbar spine 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 20140420, 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, AR20160003414 (PD201401940)

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