RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02396
BRANCH OF SERVICE:  Army	                        SEPARATION DATE:  20050605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Bradley Fighting Vehicle System Maintainer, medically separated for “chronic non-radiating thoracolumbar back pain” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 based upon a 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 – 20050505	VARD  - 20071218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Thoracolumbar Back Pain	5237	10%	Thoracolumbar Strain w/DDD	5243-5237	40%	STR	
Mild Levoscoliosis of the Lumbar Spine	Not Unfitting	No VA Entry	
Headaches	Not Unfitting	Cervical Spine Strain w/Degenerative Changes and Headaches	5242-5237	20%	STR	
Right Retropatellar Pain Syndrome	Not Unfitting	Right Knee Sprain	5260	0%	STR	
Adjustment Disorder with Anxiety	Not Unfitting	Posttraumatic Stress Disorder (PTSD)	9411	70%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Non-Radiating Thoracolumbar Back 	Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s non-radiating thoracolumbar back pain began in November 2003 after a motor vehicle accident while deployed to Iraq.  He was evaluated for discomfort in his back and treated with medication.  Lumbar spine X-rays showed narrowing of L3-4 that suggested early degenerative change and developmental variants at L1 and L4.  Thoracic spine X-rays in October 2004 showed minor mid thoracic scoliosis.  Additional neuroimaging of the thoracolumbar spine showed mild levo-scoliosis in combination with moderate to severe degenerative changes on the right of L4-L5 and L5-S1 levels.  Various interventions, including rest and pain medications, did not result in improvement.  He was not a candidate for surgery. Therefore, the MEB forwarded mechanical upper and lower back pain for PEB adjudication.  

The orthopedics MEB NARSUM noted marked paravertebral spinous spasm from T11-L5.  There was no abnormal spinal contour.  Forward flexion was to 70 degrees (normal 90 degrees) with 20 degrees of extension (normal 30 degrees).  He was tender from L1-L5.  Sensation, muscle strength and deep tendon reflexes were normal.  At the MEB examination (recorded on DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) dated January 2005, 4 months prior to separation, the physical examination showed forward flexion to 60 degrees, and full range of motion (ROM) with extension and lateral bending.  There was left visible lumbar/thoracic para spinal muscle spasms.  The Neurology consult in February 2005 noted the CI had a slightly antalgic, casual gait and tandem gait was normal.  

The MEB NARSUM examination on 10 March 2005, 3 months prior to separation, noted complaints of constant pain, averaging 4-5/10 mainly across the lumbar region.  He also reported pain in the upper back on both sides.  The worst position was standing, which he could only do for 20-30 minutes.  His best position was lying down.  Prolonged standing and sitting for more than 1 hour, bending and lifting exacerbated the pain. Gait and spinal contour were not described.  He was taking two pain medications.  Physical examination with a goniometer showed flexion to 62 degrees (normal 90 degrees) with pain and extension to 16 degrees (normal 30 degrees.)  He was unable to run, jump, road march or wear a Kevlar.  The Psychiatry consult, dated April 2005, noted the CI walked with a distinct limp.   

At a 7 July 2007 VA Compensation and Pension (C&P) evaluation, performed 25 months after separation, the CI reported constant pain that radiated down the right leg.  He could walk half a mile.  Physical examination showed normal gait, upright posture and no use of assistive devices.  ROM showed flexion before exercise of 88 degrees and after exercise 75 degrees and extension of 16 degrees before exercise and 20 degrees after exercise.  ROM was additionally limited due to pain with repetitive use.  There was no fixed deformity of the spine.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10%, coded 5237 (lumbosacral strain), citing painful motion.  The VA rated the thoracolumbar strain with degenerative disc disease condition 40% coded 5243-5237, based on the VA C&P examination 25 months after separation, citing forward flexion of 30 degrees or less and lack of sustained improvement, although the ROM measures recorded suggest a 10% rating.  The documents that would support a 40% rating were not in evidence.  The MEB NARSUM examination noted that neuroimaging identified minor mid thoracic and mild lumbar levo scoliosis and suggested that these were developmental variants.  No abnormal contours were identified on any examination.   The orthopedic MEB examination documented significant paravertebral muscle spasms without reference to gait yet the neurology and psychiatric examinations noted the presence of an antalgic gait.  Since two examiners identified paravertebral muscle spasms proximal to separation and two other examiners noted an abnormal gait proximal to separation, one could reasonably assume the spasms created an abnormal gait.  Board members agreed that these findings would meet the spirit of 20% disability.  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 non-radiating thoracolumbar back pain condition.  

Contended PEB Conditions: Mild Levo scoliosis of the Lumbar Spine, Headaches, Adjustment Disorder with Anxiety, Right Retro patellar pain Syndrome.  The Board’s main charge is to assess the fairness of the PEB’s determination that these were not unfitting.  After returning from deployment to Iraq, the CI reported some anxiety when alone, some aversion to gunfire or loud noises, and sleep difficulty related to pain.  A diagnosis of adjustment disorder with anxiety was rendered with a Global Assessment of Functioning of 80 (transient symptoms, slight impairment.)  

The Mild Levo scoliosis of the Lumbar Spine, Headaches, Adjustment Disorder with Anxiety, Right Retro patellar pain Syndrome were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  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 these contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the non-radiating thoracolumbar back pain condition, the Board recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the mild levo scoliosis of the lumbar spine, headaches, adjustment disorder with anxiety, right retro patellar pain syndrome contended 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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Non-radiating Thoracolumbar Back Pain	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160013600, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical
Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

Enclosure