RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02704
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20041110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Field Artillery Firefinder Radar Operator) medically separated for a low back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The CI’s profile did allow performance of an alternate aerobic event in order to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “back pain s/p lumbar L1 compression fracture” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “low back pain secondary to small L1 compression (minimal loss of vertebral height) and degenerative disc disease T12/L1” condition as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  CI contended that his back condition has gotten worse; that his anxiety/sleep disorder has been determined to be posttraumatic stress disorder and that his hearing loss and headaches due to tinnitus are still a problem.  His 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/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 20040729	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…and Degenerative Disc Disease (DDD) T12/L1	5235	10%	Compression Fracture L1 Vertebral Body with Degenerative Disc Disease at T12-L1	5243	10%	20040823	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20041222 (most proximate to date of separation (DOS)).  
ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The CI developed low back pain (LBP) while serving in airborne operations in November 2002.  Despite a prolonged period of conservative treatment modalities, his LBP persisted.  A remote X-ray performed in 2004 revealed a “small compression fracture of the L1 vertebral body with degenerative disc disease (DDD) at the level of T12-L1.”  Additional comment of the X-ray report included the following statement: “There is minimal loss of the vertebral body height of the L1 vertebral body with slight anterior wedging.”  He was permanently profiled in March 2004 and referred to a MEB.  At the MEB narrative summary examination (3 May 2004; 6 months prior to separation), the CI endorsed the inability to continue with his daily duties within his military unit.  The physical examination (PE) indicated decreased and painful motion of the thoracolumbar spine.  

At the VA Compensation and Pension (C&P) examination performed on 23 August 2004; 3 months prior to separation), the CI reported a constant crushing, squeezing, aching, sharp, and cramping type of LBP which is aggravated by physical activity and stress and relieved with rest and medication (Motrin).  He additionally endorsed the ability to function with medication and denied periods of incapacitation.  The thoracolumbar focused PE was comprehensive and completely normal.  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)	PT ~8 Mo. Pre-Sep
(200403019) 	PT/MEB ~6 Mo. Pre-Sep
(20040519) 	VA C&P ~3 Mo. Pre-Sep
(20040823) 	
Flexion (90 Normal)	90	(25) 25/25/25	90	
Extension (30)	30	(20) 20/20/20	30	
R Lat Flexion (30)	30	(15) 14/15/15	30	
L Lat Flexion (30)	30	(20) 22/22/23	30	
R Rotation (30)	30	(30) 35/35/35	30	
L Rotation (30)	30	(30) 32/32/35	30	
Combined (240)	240	140	240	
Comment	-	painful motion	-	
§4.71a Rating	0%	40%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  Although utilizing different VASRD codes, both the PEB (5235; vertebral fracture) and VA (5243; intervertebral disc syndrome) rated the back condition at 10%.  Board members first acknowledged the vast difference in ROM parameters noted at the PT/MEB examination which were not previously present and resolved 3 months prior to separation.  Members deliberated over examination probative value (PV) in this case and concluded that in the absence of additional interim history of injury, surgery, or other aggravation of his back condition, the dramatic worsening of ROM at 6 months prior to separation remained inconsistent with the totality of the clinical encounters contained in the case file.  After an extensive review of the STR, Board members concluded that exclusive exam PV be apportioned to the VA examination due to its close time reference to the DOS.  The completely normal PE as found in the probative VA examination would not equate to any positive impairment rating under VASRD guidelines; therefore, IAW DoDI 6040.44, the Board may not recommend a rating lower than that received at the time of Service separation.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s 10% rating decision for the lumbar spine condition. 

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.  

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 20140602, 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 XXXXXXXXXX, AR20160003737 (PD201402704)

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