RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02541
BRANCH OF SERVICE:  Army	BOARD DATE:  20150127
SEPARATION DATE:  20090408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Plumber) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “chronic lower back pain secondary to a first lumbar (L1) compression fracture without radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (right wrist pain, hypertension, hemorrhoids, and neck pain) for PEB adjudication.  The Informal PEB adjudicated his back condition as unfitting and rated it at 10% with application of the Veterans Affairs 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 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:

IPEB – Dated 20090204	VA* - (~1 Month Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5235	10%	Thoracolumbar Spondylolisthesis	5239	20%	20090514	
Chronic Right Wrist Pain	Not Unfitting	Degenerative Joint Disease Right Wrist	5215-5003	10%	20090514	
Hypertension	Not Unfitting	Systemic Hypertension 	7101	0%	20090514	
Hemorrhoids	Not Unfitting	Hemorrhoids	7336	NSC	20090514	
Neck Pain	Not Unfitting	Cervical Spine Strain	5237	10%	20090514	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20090626 (most proximate to date of separation (DOS))
ANALYSIS SUMMARY:

Low Back Condition.  Radiographs confirmed an anterior wedge compression fracture of the CI’s first lumbar vertebra after jumping from a vehicle while deployed in June 2007.  Orthopedics and neurosurgery did not recommend surgery.  His primary treatment remained manipulations, injections, and pain medication.  Although a single service treatment record (STR) indicated the CI endorsing right-sided radicular symptoms, there was no evidence of the same in subsequent clinical encounters.  There were no periods of incapacitation and a permanent profile was issued in December 2008.  At the MEB narrative summary examination on 3 December 2008; 4 months prior to separation, the CI endorsed back pain when lifting greater than 35 pounds or when running, jumping, or climbing.  He denied radicular symptoms into his lower legs.  The physical examination (PE) indicated a tandem gait with full, but painful lumbosacral range-of-motion (ROM).  Repeat X-rays revealed a mild, healed anterior wedge L-1 compression fracture with less than 5% loss of anterior height.  Two weeks prior to separation, the CI was seen at a VA facility as to “establish care” for his back condition.  Upon PE, the examiner noted the CI as “no acute distress, ambulates and changes position easily without limp or assistive device.”  No ROM measurements were documented.

At the VA Compensation and Pension examination on 14 May 2009; 6 weeks after separation, the CI reported an ability to perform all “basic daily activities,” and “an inability to run, or jog and significant problems with lifting.”  His painful symptoms were aggravated by bending and or prolonged sitting.  The PE revealed a normal posture and gait.  There was lumbosacral tenderness present.  Thoracolumbar ROM was globally decreased with pain-limiting flexion on repetition.  There was no evidence of back spasms.

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/PT 
~4 Mo. Pre-Sep
(20081202)	PT
~4 Mo. Pre-S ep
(20081218) 	VA C&P
~6 weeks Post-Sep
(20090514)	
Flexion (90 Normal)	(90) 100	‘to ankles’ (considered normal) = 90	50	
Extension (30)	30	30	10	
R Lat Flexion (30)	(30) 35	30 (45)	15	
L Lat Flexion (30)	(30) 35	30 (45)	15	
R Rotation (30)	30	--	15	
L Rotation (30)	30	--	15	
Combined (240)	240	--	120	
Comment	Painful motion	Tenderness	Painful motion	
§4.71a Rating	10%	0%-10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized similar primary codes of 5235 (vertebral fracture) and 5239 (spondylolisthesis), respectively; with the PEB citing painful motion and the VA as limited motion.  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10%, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.59 and §4.71a.  Next, members acknowledged the ROM values reported by the VA examiner, near the time of service separation, being significantly worse than those reported by the MEB 5 months prior, having significant implications regarding the Board's final rating recommendation.  The Board thus carefully deliberated its probative value assignment to these differing evaluations, and carefully reviewed the file for corroborating evidence in the 12-month period prior to separation.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  The single entry of measured flexion and ROM combination at the VA exam were the primary findings of discussion in this case.  Members deliberated over 10% or 20% impairment ratings associated with each exam’s ROM findings.  VASRD’s 20% criteria is forward flexion greater than 30 degrees, but not greater than 60 degrees or a combined ROM not greater than 120 degrees.  Board members considered and agreed that in the absence of any interim injury or inciting adverse event coupled with the persistent presence of a normal gait, the totality of the evidence remained more consistent at a 10% impairment level.  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 back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that his right wrist pain, hypertension, hemorrhoids, and neck pain were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Right Wrist.  The CI injured his right hand in May 2008.  A complete radiologic work-up was normal specifically noting no evidence of fracture, dislocation, arthritic or inflammatory changes.  An exam conducted 3 weeks after his initial visit for wrist pain indicated normal stability with full non-painful ROM without weakness.  Furthermore, an examination conducted 7 weeks after separation noted his right hand pain scale assessed at 0/10 with X-ray evidence of an injury to two of his fingers; not his wrist.  Absent significant adverse wrist pathology, the condition clearly did not impose fitness limitations, and was not compensable even if conceded as unfitting.  It was not profiled, implicated in the commander’s statement, or judged to fail retention standards.  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 right wrist condition.

Hypertension, Hemorrhoids, and Neck Pain Conditions.  The STR contained minimal primary encounters for these conditions; most of which were simply listed as historical conditions or were part of incomplete documentation as to treatment and or follow-up.  These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The conditions were reviewed by the action officer 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’s fitness determination for the hypertension, hemorrhoids, or neck 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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right wrist pain, hypertension, hemorrhoids, and neck pain 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 20140429, 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, AR20150010612 (PD201402541)

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