RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02142
BRANCH OF SERVICE:  Army	BOARD DATE:  20150116
SEPARATION DATE:  20060527

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for thoracic spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty, but was authorized to perform an alternate physical fitness test (per PROFILE).  She was issued a permanent U3L2 profile and referred for a Medical Evaluation Board (MEB).  The “chronic upper back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions as medically acceptable, for PEB adjudication.  The Informal PEB adjudicated “chronic upper back pain…without neurologic abnormality” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 20060228	VA* - (~9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Upper Back Pain…Without Neurologic Abnormality	5237	10%	Thoracic Spine Strain 	5237	20%	20070209	
Endometriosis	Not Unfitting	Endometriosis	7629	0%	20070209	
Dysthymic Disorder	Not Unfitting	PTSD …MDD	9411	NSC	20070209	
Bilateral Knee Pain	Not Unfitting 	PFS, Right Knee	5024	NSC	20070209	
		PFS, Left Knee	5024	NSC	20070209	
Other x 0 (Not In Scope)	Other x 8 (Not In Scope)	
RATING:  10%	RATING: 20%	
*Derived from VA Rating Decision (VARD) dated 20070703 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  The records of the initial back injury and treatment were not available in evidence before the Board and could not be located after appropriate inquiries.  A further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Chronic Upper Back Pain Condition.  The CI was in a car accident on 3 November 2004.  Lumbar X-rays (possibly taken the day prior) and thoracic spine X-rays were normal.  No other records were available for review until the CI was entered into the MEB process for chronic pain.  The commander’s statement dated 22 November 2005 noted that her back pain prevented her from completing all required duties, but that she could qualify on a pistol and alternate physical fitness test.  She was not deployable, but could perform administrative duties.  In the narrative summary (NARSUM) dated 17 January 2006, the CI reported constant back pain since the car accident in November 2004.  She had been treated with medications, physical and chiropractic therapy, and injections with only temporary relief.  Her pain was aggravated by activity, but was not predictable.  It was noted that a magnetic resonance imaging of the thoracic spine in March 2005 was normal.  On examination, her gait and stance were normal.  The back was tender to palpation, but spasm not recorded.  The range-of-motion (ROM) is below.  Painful motion was not recorded.  Strength and reflexes were normal.  At the VA Compensation and Pension (C&P) examination performed on 9 February 2007, 9 months after separation, the CI reported chronic back pain with daily flares.  She used foot orthotics and knee braces.  Incapacitation was not recorded.  On examination, she was noted to walk with a minimal arm swing and a stiff appearing back.  Some flattening of the normal thoracic curve was present.  Spasm was present.  Sensation and reflexes were normal.  Some weakness of both the upper and lower extremities was present, but not in a particular pattern.  

The goniometric ROM evaluations 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)	MEB ~4 Mo. Pre-Sep	VA C&P ~9 Mo. Post-Sep	
Flexion (90 Normal)	90 	60 	
Combined (240)	210	110	
Comment	Normal gait, no spasm	Limited by pain	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the back condition 5237 (lumbosacral strain) but rated it 10% and 20% respectively.  The NARSUM supports a 10% rating; however, the VA C&P examination, accomplished 9 months after separation, supports a 20% rating.  The Board observed that the ROM values reported by the VA examiner are significantly worse than those reported by the MEB examiner.  However, there is no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  The Board also considered if an unfitting neuropathy (nerve problem) secondary to the back condition was present at separation, but the evidence does not support such a determination.  After due deliberation in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended dysthymic disorder, bilateral knee pain, and endometriosis 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.  These conditions were not implicated in the commander’s statement and were not judged to fail retention standards.  The knee pain was given an L2 profile.  The dysthymic disorder was mentioned on the final profile, but the CI retained an S1 profile.  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 any of the contended conditions and so no additional disability ratings are recommended.

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 upper back pain condition and IAW VASRD §4.71a, the Board, by majority vote, recommends no change in the PEB adjudication.  In the matter of the contended dysthymic disorder, bilateral knee pain, and endometriosis 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.

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 20140425 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150010554 (PD201402142)

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